tag:theconversation.com,2011:/id/topics/us-constitution-18720/articlesUS Constitution – The Conversation2024-03-26T12:40:09Ztag:theconversation.com,2011:article/2250612024-03-26T12:40:09Z2024-03-26T12:40:09ZPoliticians may rail against the ‘deep state,’ but research shows federal workers are effective and committed, not subversive<figure><img src="https://images.theconversation.com/files/584101/original/file-20240325-22-7ip3p7.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2995%2C2043&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A worker at the National Hurricane Center tracks weather over the Gulf of Mexico.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/philippe-papin-hurricane-specialist-at-the-national-news-photo/1494908383">Joe Raedle/Getty Images</a></span></figcaption></figure><p>It’s common for political candidates to disparage “the government” even as they run for an office in which they would be part of, yes, running the government. </p>
<p>Often, what they’re referring to is what <a href="https://scholar.google.com/citations?user=I_z924QAAAAJ&hl=en&oi=ao">we</a>, as <a href="https://scholar.google.com/citations?hl=en&user=RW9itwwAAAAJ">scholars</a> of the inner workings of democracy, call “the administrative state.” At times, these critics use a label of collective distrust and disapproval for government workers that sounds more sinister: “<a href="https://doi.org/10.1080/23276665.2023.2249142">the deep state</a>.”</p>
<p>Most people, however, don’t know what government workers do, why they do it or how the government selects them in the first place.</p>
<p>Our years of research about the people who work in the federal government finds that they care deeply about their work, aiding the public and pursuing the stability and integrity of government.</p>
<p>Most of them are devoted civil servants. Across hundreds of interviews and surveys of people who have made their careers in government, what stands out most to us is their commitment to civic duty without regard to partisan politics. </p>
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<a href="https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A drawing of a statue with a caricature of Andrew Jackson riding on a pig." src="https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=911&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=911&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=911&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1144&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1144&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584107/original/file-20240325-23-c14rfc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1144&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Andrew Jackson was a proponent of the ‘spoils system’ in which new presidents could hire friends and supporters into government jobs.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:In_memorium--our_civil_service_as_it_was.JPG">Thomas Nast, Harper's Weekly, via Wikimedia Commons</a></span>
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<h2>From spoils to merit</h2>
<p>From the country’s founding through 1883, the U.S. federal government relied on what was called a “<a href="https://doi.org/10.1177/009539979802900606">spoils system</a>” to hire staff. The system got its name from the expression “to the victor goes the spoils.” A newly elected president would distribute government jobs to people who helped him win election.</p>
<p>This system had two primary defects: First, vast numbers of federal jobholders could be displaced every four or eight years; second, many of the new arrivals had no qualifications or experience for the jobs to which they were appointed. </p>
<p>Problems resulting from these defects were smaller than modern Americans might expect, because at that time the federal government was much smaller than it is today and had less to do with Americans’ everyday lives. This method had its defenders, including President Andrew Jackson, who <a href="https://search.worldcat.org/title/7597210">believed that government tasks were relatively simple</a> and anyone could do them.</p>
<p>But even so, the spoils system meant government was not as effective as it could have been – and as the people justifiably expected it to be.</p>
<p>In 1881, President James Garfield was assassinated by a <a href="https://www.penguinrandomhouse.com/books/114423/destiny-of-the-republic-by-candice-millard/">man who believed he deserved a government job</a> because of his support for Garfield but didn’t get one. The assassination led to bipartisan passage in Congress of the <a href="https://www.archives.gov/milestone-documents/pendleton-act">Pendleton Act of 1883</a>. </p>
<p>The law brought sweeping change. It introduced for the first time principles of merit in government hiring: Appointment and advancement were tied to workers’ competence, not their political loyalties or connections. To protect civil servants from political interference, they were given job security: Grounds for firing now revolve around poor performance or misconduct, rather than being a supporter of whichever political party lost the last election.</p>
<p>Nearly <a href="https://fred.stlouisfed.org/series/CES9091000001">3 million career civil servants</a> continue to have these protections today. New presidents still get to hire <a href="https://www.whitehouse.gov/ppo/">roughly 4,000 political appointees</a> with fewer protections.</p>
<p>As a result of these changes and related reforms in the <a href="https://www.eeoc.gov/history/civil-service-reform-act-1978">Civil Service Reform Act of 1978</a>, the U.S. government is <a href="https://doi.org/10.1111/padm.12945">far more effective today</a> than it was prior to the Pendleton Act. </p>
<p>In fact, U.S. civil service institutions, built on merit-based appointments, merit-based advancement and security of employment, have become the <a href="https://doi.org/10.33545/26646021.2020.v2.i1b.40">standard for democratic governments</a> around the globe. U.S. federal workers are generally <a href="https://doi.org/10.1080/23276665.2023.2249142">high-performing, impartial and minimally corrupt</a> compared with other countries’ civil servants.</p>
<h2>Increasing government responsibilities</h2>
<p>Since 1776, the U.S. population has increased <a href="https://www.census.gov/library/stories/2019/07/july-fourth-celebrating-243-years-of-independence.html">from about 2.5 million people to over 330 million today</a>. With its growing size and with technological advances, the federal government now provides a great many services, including <a href="https://www.nytimes.com/2024/03/19/opinion/trump-deep-state.html">protecting its citizens</a> from complex environmental, health and international threats.</p>
<p>Environmental Protection Agency employees help maintain clean air and water and clean up toxic waste dumps to protect human health. Department of Energy scientists and managers oversee the treatment and disposal of <a href="https://wwnorton.com/books/The-Fifth-Risk/">radioactive nuclear waste</a> from our weapons program and power plants. National Park Service staff manage over <a href="https://www.doi.gov/sites/doi.gov/files/uploads/fy2021-bib-bh081.pdf">85 million acres of public land across all 50 states</a>. The National Oceanic and Atmospheric Administration’s forecasters’ advance detection of potential weather emergencies enable early warnings and evacuations from high-risk areas, <a href="https://wwnorton.com/books/The-Fifth-Risk/">which has saved countless lives</a>.</p>
<p>Federal Emergency Management Agency employees aid survivors of natural disasters. That agency also subsidizes flood insurance, making home insurance available in flood-prone areas. The U.S. government additionally provides <a href="https://www.gsb.stanford.edu/insights/federal-government-pays-farmers-doesnt-mean-farmers-are-fans">billions of dollars in subsidies</a> per year to support farmers and maintain food security. </p>
<p>These programs are all administered by government employees: environmental scientists, lawyers, analysts, diplomats, security officers, postal workers, engineers, foresters, doctors and many other specialized career civil servants. Andrew Jackson’s idea of government work no longer applies: You do not want just anyone managing hazardous waste, sending a space shuttle into orbit or managing public lands constituting <a href="https://www.gao.gov/managing-federal-lands-and-waters">one-third of the country’s territory</a>.</p>
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<a href="https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People wearing white helmets and white jackets slice open meat carcasses." src="https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=444&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=444&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=444&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=558&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=558&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584104/original/file-20240325-26-idylq7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=558&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">U.S. Department of Agriculture food safety inspectors examine meat at a processing plant.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AgSecretaryFoodSafety/51f2053e7b3841c5b9343ebff015c7c3/photo">AP Photo/Nati Harnik</a></span>
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<h2>A dedicated workforce</h2>
<p>Research, including our own, shows that these workers are not self-serving elites but rather dedicated and committed public servants.</p>
<p>That’s <a href="https://us.sagepub.com/en-us/nam/the-new-case-for-bureaucracy/book238024">generally true</a> even of Internal Revenue Service staffers, postal service clerks and other bureaucratic functionaries who may not earn much public respect. Federal employees <a href="https://global.oup.com/academic/product/phantoms-of-a-beleaguered-republic-9780197656945?cc=us&lang=en&">mirror demographics in the United States</a> and are hired, trained and legally obligated to uphold the Constitution and <a href="https://doi.org/10.1086/725313">serve the public interest</a>.</p>
<p>One of us, Jaime Kucinskas, with sociologist and law professor <a href="https://law.seattleu.edu/faculty/directory/profiles/zylan-yvonne.html">Yvonne Zylan</a>, tracked the experiences of dozens of federal employees across the EPA, Department of Health and Human Services, State Department, Department of Interior, Department of Defense, Department of Homeland Security and various other agencies during the Trump administration. That research found these workers were dedicated to serving the public and the Constitution, upholding the missions of their agencies and democracy, and <a href="https://doi.org/10.1086/725313">working to support leadership and the elected president</a>. </p>
<p>Even though 80% of the centrist and Democratic Party-leaning government workers they spoke with did not believe in the ideas behind the Trump presidency, they were careful to follow legal official orders from the administration.</p>
<p>They noted the importance of speaking up while leaders deliberated what to do. After political appointees and supervisors made their decisions, however, even the civil servants who most valued speaking truth to power acknowledged, “Then it’s time to execute,” as one State Department employee told Kucinskas. “As career professionals we have an obligation to carry out lawful instructions, even if we don’t fully agree with it.”</p>
<p>Another international affairs expert told Kucinskas, “People have voted and this is where we’re at. And we’re not going to change things. We don’t do that here.” He said if political appointees “want to do what you consider bad decisions … we do our best to give more information. … And if they still decide to do (it), then we say okay, that’s what we’re going to do.”</p>
<p>He was firm in this loyal and deferential position to the elected president and his administration in 2018 and again in a 2020 follow-up interview. “If you want to be an advocate, you can leave and work in a different sector,” he concluded. </p>
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<a href="https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People wearing reflective safety vests stand in a clearing." src="https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584106/original/file-20240325-20-pr6w27.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Environmental Protection Agency workers tour the site of an abandoned mercury mine in California slated for cleanup.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/environmental-protection-agency-remedial-project-manager-news-photo/2041454729">Jane Tyska/Digital First Media/East Bay Times via Getty Images</a></span>
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<p>Some decided to do just that: More than a quarter of the upper-level government workers Kucinskas spoke with left their positions during the Trump administration. Although exits typically rise during presidential transitions, <a href="https://academic.oup.com/jpart/article/31/2/451/5983893">they typically remain under 10%</a>, making this degree of high-level exits unusually high.</p>
<p>Even as many Americans express frustration with the president, Congress and the <a href="https://www.pewresearch.org/politics/2022/06/06/the-people-of-government-career-employees-political-appointees-and-candidates-for-office/">federal government as a whole</a>, however, we believe it is important not to take for granted what federal government workers are doing well. U.S. citizens benefit from effective federal services, thanks in part because the government hires and rewards civil servants because of their merit rather than loyalty.</p><img src="https://counter.theconversation.com/content/225061/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Years of research about the people who work in the federal government finds that most of them are devoted civil servants who are committed to civic duty without regard to partisan politics.Jaime Kucinskas, Associate Professor of Sociology, Hamilton CollegeJames L. Perry, Professor of Public and Environmental Affairs Emeritus, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2258772024-03-19T12:22:46Z2024-03-19T12:22:46ZSupreme Court’s questions about First Amendment cases show support for ‘free trade in ideas’<figure><img src="https://images.theconversation.com/files/582619/original/file-20240318-16-9btkbx.jpg?ixlib=rb-1.1.0&rect=24%2C0%2C8218%2C5487&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Clouds float over the Supreme Court building on March 15, 2024.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-supreme-court-of-the-united-states-building-is-seen-in-news-photo/2079442702">Celal Gunes/Anadolu via Getty Images</a></span></figcaption></figure><p>This term, the U.S. Supreme Court has heard oral arguments in a total of five cases involving questions about whether and how the First Amendment to the Constitution applies to social media platforms and their users. These cases are parts of a <a href="https://www.nytimes.com/2024/03/17/us/politics/trump-disinformation-2024-social-media.html">larger effort by conservative activists</a> to block what they claim is government censorship of people who seek to spread false information online.</p>
<p>The most recently heard case, on March 18, 2024, was <a href="https://www.scotusblog.com/case-files/cases/murthy-v-missouri-3/">Murthy v. Missouri</a>, about whether the federal government’s direct communication with social media platforms, specifically about online content relating to the COVID-19 public health emergency, violated the First Amendment rights of private citizens. </p>
<p>The case stemmed from the Biden administration’s efforts to combat misinformation that spread online, including on social media, during the pandemic. The plaintiffs said White House officials “<a href="https://www.supremecourt.gov/DocketPDF/23/23-411/293780/20231219192259919_23-411ts%20Murthy.pdf#page=41">threatened platforms with adverse consequences</a>” if they didn’t take down or limit the online visibility of inaccurate information – and that those threats amount to the unconstitutional suppression of free speech from private individuals who shared content that contained debunked conspiracy theories and contradicted scientific evidence.</p>
<p>It is not uncommon for government officials to informally pressure private parties, like social media platforms, into limiting, censoring or moderating speech by third parties. As Justice Amy Coney Barrett seemingly implied during the Murthy v. Missouri oral arguments, “vanilla encouragement” by government officials would be constitutionally permissible. But when the informal pressure turns into bullying, threats or coercion, it may trigger First Amendment protections, as the Supreme Court ruled in another case called <a href="https://www.oyez.org/cases/1962/118">Bantam Books v. Sullivan, from 1963</a>.</p>
<p>But the Biden administration said its effort to fight COVID misinformation was normal activity, in which the government is allowed to express its views to persuade others, especially in ways that advance the public interest. </p>
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<a href="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits stand in a room with screens and flags." src="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=530&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=530&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=530&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Joe Biden and Surgeon General Vivek Murthy attend a meeting in 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-speaks-alongside-u-s-surgeon-general-dr-news-photo/1400488520">Kevin Dietsch/Getty Images</a></span>
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<p>Several justices seemingly agreed with the Biden administration and accepted its view that ordinary pressure to persuade is permissible. </p>
<p>More broadly, the Supreme Court has wrestled with the application of the First Amendment to cases involving social media platforms. Earlier this term, the court heard several cases that involved content moderation – both by the platforms themselves and by public officials using their own social media accounts. As Justice Elena Kagan put it during one round of oral arguments: “<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-324_fe9g.pdf#page=22">That’s what makes these cases hard</a>, is that there are First Amendment interests all over the place.” </p>
<p>Perhaps most fundamentally, the court seeks to evaluate the relationship between social media platforms and public officials.</p>
<h2>A public official or a private social media user?</h2>
<p>On March 15, the Supreme Court released its <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">unanimous decision in Lindke v. Freed</a> – another case involving social media platforms. The issue in that case was whether a public official can delete or block private individuals from commenting on the official’s social media profile or posts. </p>
<p>This case involved James Freed, the city manager of Port Huron, Michigan, and Facebook user Kevin Lindke. Freed initially created his Facebook profile before entering public office, but once he was appointed city manager, he began using the Facebook profile to communicate with the public. Freed eventually blocked Lindke from commenting on his posts after Lindke <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">“unequivocally express(ed) his displeasure with the city’s approach to the (COVID-19) pandemic.”</a></p>
<p>The court ruled that on social media, where users, including government officials, often mix personal and professional posts, “<a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">it can be difficult to tell whether the speech is official or private</a>.” But the court unanimously found that if an official possesses “actual authority to speak” on behalf of the government, and if the person “purported to exercise that authority when” posting online, the post is a government action. In that case, the official cannot block users’ access to view or comment on it. </p>
<p>The court ruled that if the poster either does not have authority to speak for the government, or is not clearly exercising that authority when posting, then the message is private. In that situation, the poster can restrict viewing and commenting because that is an exercise of their own First Amendment rights. But when a public official posts in their official capacity, the poster must respect the First Amendment’s limitations placed on government. The court sent <a href="https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf">a similar case</a>, <a href="https://www.oyez.org/cases/2023/22-324">O'Connor-Ratcliff v. Garnier</a>, back to a lower court for reconsideration based on the ruling in the Lindke case.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An illustration of a person surrounded by phone and computer screens spouting all manner of information and noise." src="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Online information can be a cacophony from which it is hard to discern truth and accuracy.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/information-attack-and-people-panic-negative-royalty-free-illustration/1347323610">Nadezhda Kurbatova/iStock / Getty Images Plus</a></span>
</figcaption>
</figure>
<h2>Who controls what’s online?</h2>
<p>At the root of the plaintiffs’ claims in both these cases is content moderation – whether a public official can moderate another user’s content by deleting their posts or blocking the user, and whether the federal government can interact with social media platforms to mitigate the spread of debunked conspiracy theories and scientifically disprovable narratives about the pandemic, for instance.</p>
<p>Ironically, though conservatives argue that the federal government cannot interact with the social media platforms to influence their content moderation, Florida and Texas – states governed by Republican majorities in the statehouse and Republican governors – enacted state laws that seek to restrict the platforms’ own content moderation.</p>
<p>While the laws in each state differ slightly, they <a href="https://knightcolumbia.org/content/in-cases-involving-florida-and-texas-social-media-laws-knight-institute-urges-supreme-court-to-reject-extreme-arguments-made-by-states-and-platforms">share similar provisions</a>. First, both laws contain “must-carry provisions,” which “prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances,” according to the Knight First Amendment Institute at Columbia University.</p>
<p>Second, both laws require the social media platforms to provide individualized explanations to any user whose content is moderated by the platform. Both laws were passed to combat the false perception that the platforms <a href="https://www.theguardian.com/media/2021/feb/01/facebook-youtube-twitter-anti-conservative-claims-baseless-report-finds">disproportionately silence conservative speech</a>.</p>
<p>The Florida and Texas laws were challenged in two cases whose oral arguments were heard by the Supreme Court in February 2024: <a href="https://www.oyez.org/cases/2023/22-277">Moody v. NetChoice</a> and <a href="https://www.oyez.org/cases/2023/22-555">NetChoice v. Paxton</a>, respectively. Florida and Texas argued that they can regulate the platforms’ content moderation policies and processes, but the platforms argued that these laws infringe on their editorial discretion, which is protected by well-established First Amendment precedent.</p>
<p>During oral argument in both cases, the justices appeared skeptical of both laws. As Chief Justice John Roberts stated, the First Amendment <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf">prohibits the government, not private entities, from censoring speech</a>. Florida and Texas argued that they enacted these laws to protect the free speech of their citizens by limiting the platforms’ ability to moderate content. </p>
<p>But social media users do not have any First Amendment protections on the platforms, because private entities, like Facebook, are free to moderate the content on their platforms as they see fit. Roberts was quick to respond to Texas and Florida: “The First Amendment restricts what the government can do, and what the government’s doing here is saying you must do this, you must carry these people.” </p>
<h2>Where are the online boundaries of free speech?</h2>
<p>Collectively, these cases demonstrate the Supreme Court’s interest in defining the boundaries of First Amendment protections as they relate to social media platforms and their users. Moreover, the court seems focused on establishing the limits of the relationship between government and social media platforms.</p>
<p>The justices’ questions during the NetChoice cases suggest that they are skeptical of government regulation that forces social media platforms to carry certain content. In this way, the justices seem poised to affirm the principle that government cannot directly or formally force an individual or, in this case, a private company, to convey a message that it does not wish to carry. </p>
<p>But the justices’ questions during Murthy v. Missouri seem to suggest that it is not a violation of the First Amendment for government officials to informally interact or communicate with social media platforms in an attempt to persuade them not to carry material the government dislikes.</p>
<p>Considering all of these cases together, the court seems posed to further promote a robust “free trade in ideas,” which was a theory first invoked in 1919 by Justice Oliver Wendell Holmes in <a href="https://supreme.justia.com/cases/federal/us/250/616/">Abrams v. United States</a>. In Lindke v. Freed, the court identified the distinction between private speech on social media platforms by a public official, which is protected by the First Amendment, and professional speech, which is subject to First Amendment limitations that protect others’ rights. </p>
<p>In the NetChoice cases, the court seems ready to limit a state’s ability to directly compel social media platforms to convey messages that they may moderate. And in Murthy v. Missouri, the justices seem ready to affirm that while indirect compulsion may be unconstitutional, ordinary pressures to persuade social media platforms are permissible. </p>
<p>This promotion of a robust marketplace of ideas appears to stem from neither giving the government extra powers to shape public discourse, nor excluding government from the conversation altogether.</p><img src="https://counter.theconversation.com/content/225877/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>These cases have asked the justices to consider how to apply some of the most sweeping constitutional protections – those of free speech – to an extremely complex online communication environment.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2257352024-03-13T18:03:30Z2024-03-13T18:03:30ZJudge nixes some of Georgia’s charges against Trump and his allies − but that won’t necessarily derail the case<figure><img src="https://images.theconversation.com/files/581713/original/file-20240313-16-atpi0c.jpg?ixlib=rb-1.1.0&rect=50%2C21%2C4804%2C3210&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump continues to face criminal charges in Georgia, even though some have been dismissed by a judge.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/d86f97b40fdc4d09ba8a4815b47d50f7/photo">AP Photo/Steve Helber</a></span></figcaption></figure><p><em>A Fulton County judge <a href="https://s3.documentcloud.org/documents/24478988/trump_specialdemurrers_31324.pdf">has tossed out six of the 41 state charges</a> against Donald Trump and his allies in Georgia’s expansive election interference case against the former president and others.</em></p>
<p><em>Fulton County Superior Court Judge Scott McAfee issued a ruling on March 13, 2024, that focused on charges related to allegations that Trump and other defendants tried to <a href="https://www.nytimes.com/2024/03/13/us/donald-trump-charges-quashed-georgia-mcafee.html">get state officials to break the law</a> and decertify the 2020 election results.</em></p>
<p><em>The ruling doesn’t mean that the entire case is derailed, explains Georgia election and legal scholar <a href="https://scholar.google.com/citations?user=AI_UyLUAAAAJ&hl=en">Anthony Michael Kreis</a>. It’s a focused and technical ruling that says Georgia District Attorney Fani T. Willis has not specified which exact law the defendants are allegedly violating in some instances.</em> </p>
<p><em>It also doesn’t have anything to do with the <a href="https://www.washingtonpost.com/national-security/2024/03/13/fani-willis-disqualification-impact-trump-georgia-case/">defense effort to disqualify Willis</a> from the Trump case because of her romantic relationship with another prosecutor. An Atlanta-area judge is expected to soon rule on this issue.</em> </p>
<p><em>Politics and society editor Amy Lieberman spoke with Kreis to better understand what’s behind this ruling and its implications for Georgia’s case against Trump and his allies.</em> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a black robe sits behind a desk, flanked by the U.S. flag and the Georgia state flag." src="https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581701/original/file-20240313-22-fhr3r8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fulton County Superior Court Judge Scott McAfee has been hearing motions in the criminal prosecution of Donald Trump for election interference in the wake of the 2020 presidential election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/judge-scott-mcafee-presides-during-a-hearing-in-the-case-of-news-photo/2001155374">Alyssa Pointer-Pool/Getty Images</a></span>
</figcaption>
</figure>
<p><strong>What just happened with this ruling?</strong></p>
<p>Essentially what we have here is a response to a legal motion on behalf of a number of defendants, including Trump. In that motion, Trump and his co-defendants say that the state did not give enough detailed particulars about the <a href="https://www.reuters.com/legal/us-state-georgia-appears-set-file-charges-against-donald-trump-court-document-2023-08-14/">crimes that the defendants have been charged</a> with and thus should be thrown out. </p>
<p>The set of charges revolve around the concept of a violation of an oath. That sprang up as a result of Trump’s <a href="https://int.nyt.com/data/documenttools/highlights-of-trump-s-call-with-the-georgia-secretary-of-state-1/b67c0d9dbde1a697/full.pdf">phone call with Georgia Secretary of State Brad Raffensperger</a>, with Trump asking him to “find” 11,780 votes that would have given Trump a win in Georgia. The charges also related to some of the defendants’ testimony before the state General Assembly, <a href="https://apnews.com/article/trump-giuliani-georgia-election-indictment-fulton-county-203b1e69cbff227a0bf8cc59a6bb645f">asking the Georgia Legislature to overturn</a> the election and appoint their own electors. </p>
<p>The charges were based on a theory that these defendants unlawfully asked state officials to violate their oath and their duty to the constitutions of the United States and the state of Georgia. What wasn’t clear is what provisions they allegedly tried to induce state officials to violate. </p>
<p>In his ruling, the judge is saying that the state needs to go back to the grand jury and provide details of exactly what aspects of the Constitution these defendants allegedly tried to get state officials to violate, so the defendants have the ability to defend against these charges. </p>
<p><strong>Is the judge saying there is not enough evidence to proceed with this case?</strong></p>
<p>No. He’s saying that the state has not sufficiently explained how the evidence relates to an oath. For example, we know <a href="https://apnews.com/article/trump-giuliani-georgia-election-indictment-fulton-county-203b1e69cbff227a0bf8cc59a6bb645f">Rudy Giuliani went to the Georgia General Assembly</a> with <a href="https://www.pbs.org/newshour/politics/what-you-need-to-know-about-john-eastmans-2020-election-charges">John Eastman and provided false information</a> in order to encourage these state officials to overturn the election. The theory is that violated both the federal and state constitutions. </p>
<p>But a prosecutor could make that claim in a number of different ways. Did they violate the Georgia Constitution’s right to vote; did they violate the <a href="https://www.law.cornell.edu/wex/equal_protection">equal protection clause</a> in the U.S. Constitution? Is it the right to vote that is spelled out in <a href="https://sos.ga.gov/sites/default/files/2022-02/state_constitution.pdf">Georgia’s state Constitution</a>? Or is there some other provision of federal or state law they violated? It’s just not clear. </p>
<p>The evidence supporting the charges is there. What is not there is the precise theory of the crime and the exact elements that support those indictments. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A close-up of a man in a suit and tie." src="https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581702/original/file-20240313-18-9apse0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Georgia Secretary of State Brad Raffensperger, a key figure in the case against former President Donald Trump and his alleged efforts to influence the 2020 presidential election results in Georgia.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/brad-raffensperger-georgias-secretary-of-state-attends-the-news-photo/2028789353">Tom Williams/CQ-Roll Call, Inc via Getty Images</a></span>
</figcaption>
</figure>
<p><strong>Did this decision surprise you?</strong></p>
<p>No. This charge is kind of a unique charge. It is not something that people have really heard of in this context, particularly when it comes to state legislators and presidential electors. We are in an area of legal theory that is unique and without precedent. The judge is saying because we are in this new sphere of legal theory, the state really needs to be specific about what it is they are trying to prove here and what the nature of the criminality is. </p>
<p>The charge of violating an oath is just not something we see in the state of Georgia. <a href="https://thehill.com/regulation/court-battles/4152370-read-trump-indictment-georgia/">The charges have been drafted</a> in a very novel way, but they are responding to an unprecedented situation. We are in this kind of wild west of making law. And that is not necessarily a bad thing, but what it does require is a little greater attention to specifics. And the prosecutors have just not done that yet.</p>
<p><strong>Could this delay the trial against Trump and his allies in Georgia?</strong></p>
<p>Maybe. We will have to see. Willis can bring a new, more detailed indictment that is more in line with the state oath. I think if Willis brings another indictment on these charges, there probably won’t be a delay. </p>
<p>If she appeals this decision, rather than just seeking a new indictment, that might slow things down a little. </p>
<p><strong>Is this a sign that the case is being derailed?</strong> </p>
<p>No. The entire indictment, except the violation of oaths of office, still stands. This makes work for the district attorney but is not a fatal detail. Willis can go back to constitutional law experts in her working group and hone in on the theory of a constitutional violation. And she will have another bite at the apple.</p><img src="https://counter.theconversation.com/content/225735/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Michael Kreis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Georgia election law scholar explains what’s behind the ruling and what it means for the state’s prosecution of Trump.Anthony Michael Kreis, Assistant Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247182024-03-04T18:49:30Z2024-03-04T18:49:30ZThe Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications<figure><img src="https://images.theconversation.com/files/579002/original/file-20240229-24-47x21c.jpg?ixlib=rb-1.1.0&rect=174%2C174%2C2495%2C1526&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A 1935 painting depicts the 1787 meeting that adopted the U.S. Constitution.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:%27The_Adoption_of_the_U.S._Constitution_in_Congress_at_Independence_Hall,_Philadelphia,_Sept._17,_1787%27_(1935),_by_John_H._Froehlich.jpg">John H. Froehlich via Wikimedia Commons</a></span></figcaption></figure><p>When the Supreme Court ruled on March 4, 2024, that former President Donald Trump <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">could appear on state presidential ballots</a> for the 2024 election, it did not address an idea that seemed simple and compelling when Justice Brett Kavanaugh raised it during the Feb. 8, 2024, oral arguments in the case:</p>
<blockquote>
<p>“<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_5he6.pdf">What about the idea that we should think about democracy</a>, think about the right of the people to elect candidates of their choice, of letting the people decide?”</p>
</blockquote>
<p>In essence, he was asking whether it would be better to let the people, rather than a court or a state official, decide whether a controversial candidate should return to the White House.</p>
<p>Kavanaugh had a point. Under the Constitution, the people can be – and are – trusted to make a great many important decisions.</p>
<p>But Kavanaugh also missed a key point that I learned in years of <a href="https://my.wlu.edu/directory/profile?ID=x1345">teaching about the presidency, the Constitution and impeachment</a>. Right from the very beginning of the nation, and persisting until today, there have been rules that limit the ability of the people to choose their leaders.</p>
<h2>The Constitutional Convention of 1787</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=767&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=767&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=767&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=964&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=964&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=964&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gouverneur Morris.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Portrait_of_Gouverneur_Morris_(1752-1816),_1817.jpg">Ezra Ames via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>The drafters of the Constitution already had the discussion Kavanaugh was trying to start during the oral arguments.</p>
<p>In July 1787, the delegates to the Constitutional Convention, where the Constitution was written, were discussing impeachment. Gouverneur Morris – a Pennsylvania delegate who <a href="https://www.neh.gov/article/confessions-gouverneur-morris">wrote the preamble to the Constitution</a>, including its opening phrase, “<a href="https://constitutioncenter.org/the-constitution/preamble">We the People of the United States</a>” – made an argument Kavanaugh’s question would echo 237 years later.</p>
<p>When discussing <a href="https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/">whether it should be possible for Congress to remove the president</a>, Morris said no.</p>
<p>The people could decide for themselves, he said. Making the president subject to impeachment, Morris said, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">will hold him in such dependence</a> that he will be no check on the Legislature, (nor) a firm guardian of the people and of the public interest.” With regular national elections, Morris said, a flawed chief executive could be removed from office by the voters. Morris added, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">In case he should be reelected</a>, that will be sufficient proof of his innocence.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=699&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=699&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=699&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=879&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=879&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=879&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Mason.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Mason.jpg">Dominic W. Boudet after John Hesselius via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>But George Mason, a Virginia delegate and slaveholder who <a href="https://www.smithsonianmag.com/history/george-mason-forgotten-founder-he-conceived-the-bill-of-rights-64408583/">championed the idea for the Bill of Rights</a>, was ready with a response. Pointing out that true and fair elections were key to the new nation’s success, Mason noted that if criminal conduct by some future president involved corruption of the election process, the people might have trouble deciding the culprit’s fate in a subsequent election:</p>
<blockquote>
<p>“<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Shall any man be above Justice?</a> Above all shall that man be above it, who can commit the most extensive injustice? … Shall the man who has practised corruption and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”</p>
</blockquote>
<p><a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Others chimed in with similar replies</a>: Benjamin Franklin of Pennsylvania; James Madison of Virginia, a future president; Elbridge Gerry of Massachusetts, a future vice president; and Edmund Randolph of Virginia, a future U.S. attorney general and secretary of state.</p>
<p>The records of the Constitutional Convention say this at the conclusion of that section of debate: </p>
<blockquote>
<p>“Mr. Gouverneur Morris’s opinion had been changed by the arguments used in the discussion. … Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust … The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity.” </p>
</blockquote>
<p>The outcome of that discussion resulted in the first of several rules that prevent the American people from choosing just anyone as the president.</p>
<h2>Key restrictions</h2>
<p><a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-6">Section 3 of Article 1 of the Constitution</a> is the most direct result of the debate between Morris and Mason. It says that people, including the president, who are impeached and convicted can be barred from office.</p>
<p><a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">Section 1 of Article 2 of the Constitution</a> imposes more limits. It declares that some people <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">simply can’t be president</a> – those not born U.S. citizens, those under age 35 and those who have lived less than 14 years of their lives in the U.S.</p>
<p>Eight decades later, Congress and the states agreed to add a new restriction: <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a>, ratified in 1868, says those seeking to hold federal and state offices who have previously taken an oath to support the Constitution <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">may not have attemped to subvert or overthrow the Constitution</a>.</p>
<p>And in 1951, the <a href="https://constitution.congress.gov/constitution/amendment-22/">22nd Amendment to the Constitution</a> was ratified, declaring that nobody who had been president for two terms could become president again.</p>
<p>All of these rules stand in the way of simply “letting the people decide,” as Kavanaugh suggested. Strictly speaking, those rules are not democratic. But they are intended to protect democracy itself.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large room with chairs and desks." src="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=233&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=233&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=233&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=293&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=293&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=293&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Senate is one of the less democratic elements of the federal government.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:United_States_Senate_Floor.jpg">U.S. Senate via Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Democracy isn’t always democratic</h2>
<p>There are plenty of provisions in the Constitution that run counter to simple democracy. </p>
<p>The Senate and the Electoral College give <a href="https://theconversation.com/why-does-the-electoral-college-exist-and-how-does-it-work-5-essential-reads-149502">extra power to states with relatively small populations</a>.</p>
<p>No Congress – even one whose members were each elected by huge majorities – can pass a law abridging freedom of religion or freedom of speech. If a Congress were to pass such a law, the Supreme Court, which has been called <a href="https://www.thirteen.org/wnet/supremecourt/democracy/history.html">the nation’s least democratic branch</a>, could declare it unconstitutional.</p>
<p>Democratic majorities in America are both empowered and constrained by the Constitution. The founders wanted the will of the people to be heard and respected but never given absolute power. Absolute power of any kind was to be checked by a complicated set of prohibitions and procedures.</p>
<p>Kavanaugh was wise to call attention to the fact that in a democracy, the preferences of the people get a high level of deference. Voters certainly can <a href="https://www.pewresearch.org/short-reads/2023/07/21/little-change-in-americans-views-of-trump-over-the-past-year/">judge the conduct and character of Donald Trump</a> – and many have done so, both favorably and unfavorably.</p>
<p>But George Mason was also right. When politicians corrupt the electoral process, or try to do so, it makes little sense to use elections as the mechanism to fix the problem. </p>
<p>The constitutional provisions for impeachment and the 14th Amendment make clear that people who are found guilty of serious wrongdoing while in office, or violate an oath to support the Constitution, are ineligible to hold high office thereafter. In short, the people can’t choose a Senate-convicted official or an oath-breaking insurrectionist, even if they want to. </p>
<p>America’s Constitution has long acknowledged that the preservation of the republic may, in some cases, require the disqualification of candidates and officeholders who commit crimes while in positions of power or participate in insurrection against the very government they have sworn to serve. </p>
<p>The Supreme Court has sidestepped the question of whether Trump’s actions disqualify him from office and declared instead that Congress must make that determination, under the various constitutional restrictions that continue to exist about who is allowed to serve as president. The practical effect of its decision will be to let the people decide this vital question in the coming presidential election.</p><img src="https://counter.theconversation.com/content/224718/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert A. Strong does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Right from the very beginning of the nation, there have been rules that limit the ability of the people to choose their leaders.Robert A. Strong, Emeritus Professor of Politics, Washington and Lee University; Senior Fellow, Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2234262024-03-04T15:38:32Z2024-03-04T15:38:32ZSupreme Court says only Congress can bar a candidate, like Trump, from the presidency for insurrection − 3 essential reads<figure><img src="https://images.theconversation.com/files/579609/original/file-20240304-20-77h9ij.jpg?ixlib=rb-1.1.0&rect=49%2C49%2C8130%2C5408&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Journalists set up in front of the U.S. Supreme Court building on Feb. 8, 2024.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-press-stake-out-outside-the-supreme-court-in-news-photo/1991622087">Aaron Schwartz/Xinhua via Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court has ruled, in a unanimous decision, that the <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">state of Colorado cannot bar former President Donald Trump</a> from appearing on Colorado’s presidential ballot under the provisions of <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a> to the U.S. Constitution.</p>
<p>The text of <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment states</a>, in full:</p>
<blockquote>
<p>“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”</p>
</blockquote>
<p>The ruling said states may decide who is eligible to hold state offices, but <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">only Congress may decide</a> who is eligible to hold federal offices.</p>
<p>Writing for The Conversation U.S. as far back as 2021, several scholars have explained aspects of this part of the Constitution, how it was intended, and the legal and political considerations surrounding its function. They give context to the court’s ruling and what it means for the country now.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pelosi signs a document with four people standing behind her, and American flags" src="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Then-Speaker of the House Nancy Pelosi signs an article of impeachment against then-President Donald Trump on Jan. 13, 2021.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/speaker-of-the-house-nancy-pelosi-signs-an-article-of-impeachment-picture-id1230572656?k=6&m=1230572656&s=612x612&w=0&h=V-BDhqZJ7pEUiqqfWq25M5pz4SND4vIJiq3wpFu6O7Q=">Stefani Reynolds/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. A relatively recent development</h2>
<p>In early 2021, <a href="https://mckinneylaw.iu.edu/faculty-staff/profile-WCMS.cfm?Id=40">Gerard Magliocca</a>, a law professor at Indiana University, pointed out that up until that time, “<a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">Section 3 of the 14th Amendment</a> was an obscure part of the U.S. Constitution.”</p>
<p>But this provision had an important purpose, he wrote:</p>
<blockquote>
<p>“It prohibits current or former military officers, along with many current and former federal and state public officials, <a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">from serving in a variety of government offices</a> if they ‘shall have engaged in insurrection or rebellion’ against the United States Constitution.”</p>
</blockquote>
<p>The Supreme Court’s ruling did not decide whether Trump had or had not engaged in insurrection.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">Congress could use an arcane section of the 14th Amendment to hold Trump accountable for Capitol attack</a>
</strong>
</em>
</p>
<hr>
<h2>2. Justices focused on potential for national disarray</h2>
<p>During oral arguments on Feb. 8, 2024, several members of the Supreme Court focused on the fact that this case was about a Colorado decision to bar Trump from the ballot, which suggested that other states might come to their own conclusions if the court didn’t deliver a clear message that would apply nationwide.</p>
<p>As Notre Dame election law scholar <a href="https://law.nd.edu/directory/derek-muller/">Derek Muller</a> observed: </p>
<blockquote>
<p>“<a href="https://theconversation.com/supreme-court-skeptical-that-colorado-or-any-state-should-decide-for-whole-nation-whether-trump-is-eligible-for-presidency-223063">States are the ones who have the primary responsibility</a> of running presidential elections. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states.”</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/supreme-court-skeptical-that-colorado-or-any-state-should-decide-for-whole-nation-whether-trump-is-eligible-for-presidency-223063">Supreme Court skeptical that Colorado − or any state − should decide for whole nation whether Trump is eligible for presidency</a>
</strong>
</em>
</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer standing behind a barricade and in front of a large, white columned building." src="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Police place a fence at the U.S. Supreme Court on Feb. 8, 2024, before justices heard arguments over whether Donald Trump is ineligible for the 2024 ballot.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/05e2c7bc3615410b8088714a425193c9/photo?Query=trump%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5319&currentItemNo=15">AP Photo/Jose Luis Magana</a></span>
</figcaption>
</figure>
<h2>3. The importance of consensus</h2>
<p>The court appears to have taken pains to get to a unanimous decision. Muller anticipated such a move. He said it was likely because of the potential effect on elections:</p>
<blockquote>
<p>“<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">This is a binary choice</a> that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters. … (T)here will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to … point the finger at one side or another.”</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">US Supreme Court decision on Trump-Colorado ballot case 'monumental' for democracy itself, not just 2024 presidential election</a>
</strong>
</em>
</p>
<hr>
<p><em>This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/223426/count.gif" alt="The Conversation" width="1" height="1" />
Experts explain the context behind the Supreme Court’s ruling on Donald Trump’s eligibility to appear on presidential ballots.Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2212092024-02-04T19:09:03Z2024-02-04T19:09:03ZShould Donald Trump be disqualified from state ballots in presidential election? Here’s how the US Supreme Court might rule<p>The US Supreme Court will hear oral arguments this week in former President
Donald Trump’s <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">appeal</a> against the decision to exclude him from the ballot in the Colorado Republican primary for this year’s presidential election.</p>
<p>The Colorado Supreme Court <a href="https://apnews.com/article/trump-insurrection-14th-amendment-2024-colorado-d16dd8f354eeaf450558378c65fd79a2">ruled</a> in December that Trump was disqualified from holding the office of president under <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a> to the Constitution because he engaged in an insurrection on January 6, 2021.</p>
<p>Because the Republican primaries have already begun (Coloradoans vote on March 5) and the US Supreme Court’s current term ends on June 30, the nine justices have very little time to consider such a momentous dispute with so many constitutional issues to be clarified.</p>
<p>So, what will happen this week and how might the court rule?</p>
<h2>How does the Supreme Court operate?</h2>
<p>Each side is usually allotted 30 minutes to present their case in oral arguments, but the lawyers are almost always interrupted by questions from the justices. The questioning can provide clues as to how the justices might be leaning. </p>
<p>The justices then meet in private to discuss the case and form a preliminary opinion. The chief justice, John Roberts, has the power to determine which of the justices will draft the written opinion, but only if he is in the majority. If not, that power transfers to the next most senior justice in the majority. </p>
<p>The draft opinion will be circulated to the other justices and is subject to their suggestions and possible alterations. This is almost a political exercise because the justice writing the opinion needs to get four other justices to sign the draft, or, at least, support the decision. </p>
<p>He or she would also want to minimise the number of dissenting or concurring opinions that would, inevitably, undermine the force of the court’s majority opinion. It is an exercise in coalition-building to forge that majority, which is never certain until this final stage of the process.</p>
<h2>What are the constitutional issues?</h2>
<p>The justices face a seemingly intractable choice between two fundamental values: defending the rule of law and protecting democracy.</p>
<p>For most of its life, the <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">insurrection clause</a> has been regarded by constitutional scholars as of historical interest only and consequently ignored. </p>
<p>Trump’s <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">appeal</a> raised three major constitutional questions the Supreme Court will have to decide: </p>
<ul>
<li><p>whether Section 3 applies to Trump as a sitting president</p></li>
<li><p>what it takes to determine if someone is guilty of insurrection </p></li>
<li><p>and whether the states have the power to enforce Section 3 without prior approval from Congress.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">Trump defends himself to the Supreme Court, saying he called ‘for peace, patriotism, respect for law and order’ on Jan. 6 and is not an insurrectionist</a>
</strong>
</em>
</p>
<hr>
<p>On the first issue, Trump believes Section 3 doesn’t apply to him because it doesn’t specifically refer to the president or the presidential oath. He also claims the president is not an “officer of the United States”, as <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">the clause reads</a>. </p>
<p>In his petition, Trump offers several unconvincing reasons why this is so and it will probably be a difficult argument for his lawyers to sustain. As the Colorado Supreme Court said pointedly in its judgement, </p>
<blockquote>
<p>The Constitution refers to the presidency as an “office” 25 times.</p>
</blockquote>
<p>The second issue is whether the Colorado court erred in grounding its judgement on the fact Trump had been guilty of insurrection (based on the House Select Committee <a href="https://www.pbs.org/newshour/politics/read-the-final-report-from-the-jan-6-committee">report</a>). One of the dissenting justices argued that Trump was entitled to the “due process of law” before being disqualified from the ballot.</p>
<p>So far, Trump has not been found guilty of insurrection, nor is he facing any specific charges of insurrection in the court cases under way. </p>
<p>The respondents seeking to remove Trump from the ballot point to the findings of the trial court in Colorado detailing his actions on January 6 as the central issue in the case. They claim Trump has failed to show why the trial court was wrong. </p>
<p>In effect, then, they are asking the Supreme Court to validate the charge that Trump engaged in an insurrection.</p>
<p>The third major issue is whether Section 3 is self-executing, as the Colorado Supreme Court decided. This means the Constitution does not require legislation by Congress in order to disqualify a candidate for office under Section 3.</p>
<p>The US Supreme Court will have to decide whether Congress <em>must legitimise</em> any action under Section 3, or whether Congress merely has the power to invoke the insurrection ban should no other body do so.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1752874596733206683"}"></div></p>
<h2>How will the court likely respond?</h2>
<p>The Supreme Court has a solid six-to-three conservative majority, with three of the conservative justices nominated by Trump. But there isn’t a clear “liberal” or “conservative” position on the Colorado court’s opinion. <a href="https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/">Liberal and conservative</a> lawyers alike have provided legal rationales for excluding Trump’s candidacy based on the 14th Amendment. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1692908002473291878"}"></div></p>
<p>The last time the Supreme Court entangled itself in a presidential election – the <a href="https://supreme.justia.com/cases/federal/us/531/98/">Bush v. Gore decision</a> in 2001 – it was a judicial dog’s breakfast. The ruling was <a href="https://www.amazon.com.au/Supreme-Injustice-Court-Hijacked-Election/dp/0195158075">widely seen</a> as a political decision reflecting the partisan preferences of the five conservative justices in the majority.</p>
<p>In a blistering dissenting opinion, Justice John Paul Stevens <a href="https://www.politico.com/news/magazine/2019/12/29/john-paul-stevens-the-pessimist-of-the-supreme-court-089590">wrote</a>: </p>
<blockquote>
<p>Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.</p>
</blockquote>
<p>The court should be mindful of the public and legal backlash to that decision and its current <a href="https://www.washingtonpost.com/politics/2022/11/22/supreme-court-conservatives-alito-roberts/">low level of public approval</a>. The court’s embarrassing <a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-code-of-conduct-rcna124951">ethical problems</a> and unpopular decisions, such as the overturning of Roe v. Wade, have already clouded its legitimacy and reputation.</p>
<p>Whatever its decision, the court risks once again being seen as politically partisan. If it overturns the Colorado decision, it saves Trump’s political ambitions. If it upholds the decision and bars Trump from the ballot, it could trigger protests from Trump supporters, as Trump <a href="https://www.theguardian.com/us-news/2024/jan/10/donald-trump-bedlam-criminal-cases">has already intimated</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">US Supreme Court decision on Trump-Colorado ballot case 'monumental' for democracy itself, not just 2024 presidential election</a>
</strong>
</em>
</p>
<hr>
<p>The general view among constitutional commentators is the Supreme Court would probably not want to give 50 different states and the District of Columbia the freedom to decide who is qualified or disqualified to be president. This could lead to Trump appearing on the ballot in some states, but not others.</p>
<p>If so, it would need to make the Colorado decision apply to all states, or craft an opinion that overturns the Colorado decision without being seen as overtly pro-Trump. It would have to seek some mid-point between upholding the rule of law (some would argue the Colorado decision does that very effectively) and permitting people to be able to vote for the candidate of their choice.</p>
<p>There’s not much legal precedent to guide the court in resolving the appeal. And the liberal-conservative divide on the court is probably not going to be a reliable predictor of the outcome. How the court settles this dispute is anyone’s guess.</p>
<p>Given the current fragile state of American democracy, the country can ill-afford a repeat of Bush v. Gore.</p><img src="https://counter.theconversation.com/content/221209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Hart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Whatever its decision, the court risks once again being seen as politically partisan.John Hart, Emeritus Faculty, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2214602024-02-01T13:31:37Z2024-02-01T13:31:37ZWhy treason is a key topic in Trump’s 14th Amendment appeal to the Supreme Court<figure><img src="https://images.theconversation.com/files/572501/original/file-20240131-21-j0wp43.jpg?ixlib=rb-1.1.0&rect=23%2C14%2C3164%2C2107&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump's actions on Jan. 6, 2021, are key to questions about his eligibility to hold office.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SocialMediaConservativeVoices/33b4d0015eee462d9656a3c4146731d5/photo">AP Photo/Jacquelyn Martin</a></span></figcaption></figure><p>As oral arguments approach in former President Donald Trump’s U.S. Supreme Court appeal of a Colorado Supreme Court decision, <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html">many friend-of-the-court briefs</a> <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/297012/20240118111500480_23-719%20-%20Amicus%20Curiae%20Brief.pdf">in the case</a> bring up a subject not much found in public discussion of the case: <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">treason</a>.</p>
<p>Trump is appealing a Colorado ruling that the 14th Amendment bars him from holding office because he engaged in insurrection before, during and after Jan. 6, 2021. That decision – and <a href="https://www.cnn.com/2024/01/20/politics/donald-trump-ballot-removal-efforts-dg/index.html">several others in states around the nation</a>, some agreeing and some disagreeing with Colorado’s conclusion – have roots in the Constitution’s definition of treason, and Congress’ intent to block traitors from serving in the government. </p>
<p>As a <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">scholar of constitutional law</a>, I have submitted legal briefs in several of those cases, explaining the <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">history of the 14th Amendment’s drafting and passage</a>, and <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299332/20240131112542122_GRABER%20Amicus%20BRIEF%20filed.pdf">discussing what Republicans immediately after the Civil War hoped to attain from constitutional reform</a>.</p>
<h2>What did Congress intend?</h2>
<p><a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a> reads:</p>
<blockquote>
<p>“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”</p>
</blockquote>
<p>When Congress was drafting Section 3 of the 14th Amendment the year after the Civil War ended, the purpose of that provision was clear: to prevent people <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">from serving in the government</a> if they had used force to resist or overthrow the United States. To Congress, those actions constituted treason.</p>
<p>In drafting the language, Congress drew inspiration from the framers of the Constitution that was ratified from 1787 to 1789. Article III of the Constitution declares that there are two ways to commit treason against the United States: “<a href="https://constitution.congress.gov/constitution/article-3/#article-3-section-3-clause-1">levying War against</a> (the U.S.), or in adhering to (its) Enemies, giving them Aid and Comfort.”</p>
<p>Section 3 of the 14th Amendment, <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">passed by Congress and ratified by the states in the late 1860s</a>, makes the same division when describing the actions of people who should be barred from public office. There is one change: Republicans in Congress substituted the phrase “engaged in insurrection or rebellion” for “levying war.” </p>
<h2>A significant offense</h2>
<p>Treason has long been a serious crime, different from other crimes because the target was the government. </p>
<p>Since at least the 1760s, and almost certainly for centuries before that, English common law made clear that treason was not a regular crime like, say, murder: Someone who gave a weapon to a person knowing they intended to kill another person is an accessory to murder. But someone who gave a weapon to a person knowing they intended to commit treason is <a href="https://avalon.law.yale.edu/18th_century/blackstone_bk4ch3.asp">a traitor, not an accessory to treason</a>.</p>
<p>In short, treason is treason, and a person either engages in treason or does not. There are no degrees of treason.</p>
<p>This rule applied in the U.S. too: <a href="https://www.oyez.org/justices/samuel_chase">Samuel Chase</a>, who signed the Declaration of Independence and was appointed to the Supreme Court by George Washington, said so <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0009.f.cas/0009.f.cas.0924.pdf#page=16">in 1800</a>. His view was echoed <a href="https://famous-trials.com/burr/169-judgement">in 1807 by Chief Justice John Marshall</a> and in <a href="https://www.google.com/books/edition/The_Monthly_Law_Reporter/ti8ZAAAAYAAJ?hl=en&gbpv=1&dq=%E2%80%9D+the+law+knows+no+accessories+in+treason%3B+but+that+every+one+who,+if+it+were+a+felony,+would+be+an+accessory,+is,+in+the+law+of+treason,+a+principal+traitor.%E2%80%9D&pg=PA417&printsec=frontcover">1851 by Supreme Court Justice Benjamin Curtis</a>.</p>
<p>The rule was also reiterated in an 1863 case, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">U.S. v. Greathouse</a>, in which people were charged with treason for buying a ship and outfitting the vessel to break the U.S. blockade of Confederate ports. </p>
<p>Supreme Court Justice Stephen Field served on the bench of a lower federal court for that trial, as justices often did then. In directions to the jury, he declared, “all who aid … whether by open hostilities … or any part in the furtherance of the common object, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">however minute or however remote from the scene of action</a>, are equally guilty of treason.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of people climb the walls and stairs of the U.S. Capitol." src="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Violent protesters stormed the Capitol on Jan. 6, 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SocialMediaConservativeVoices/1714e596e04b4367956e142598025532/photo">AP Photo/John Minchillo</a></span>
</figcaption>
</figure>
<h2>Two forms of treason</h2>
<p>In the Constitution’s Article III, and in the 14th Amendment, there are two ways a person can commit treason: by “<a href="https://constitution.congress.gov/constitution/article-3/#article-3-section-3-clause-1">levying war</a>” – which in the 14th Amendment is replaced with “<a href="https://constitution.congress.gov/browse/amendment-14/section-3/">engaged in insurrection or rebellion</a>” – or by giving “aid and comfort” to people determined to be “enemies” of the United States.</p>
<p>The distinctions were important enough for the Framers to make, and for Congress to repeat <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">in the late 1860s</a>, when the 14th Amendment was passed and ratified by the states.</p>
<p>But ever since the nation’s founding, the difference between those two has been clear, and it’s not whether a person took one treasonous action or another. Field made very clear the distinction is in the person’s nationality: By constitutional definition, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">U.S. citizens cannot be considered</a> “enemies of the United States.” They can only be viewed as rebels or insurrectionists. </p>
<p>In the Greathouse case, another federal judge, Ogden Hoffmann, served alongside Field. When Hoffmann spoke to the jury, he agreed with Field that the distinction between the two categories was whether the fighters were U.S. citizens or not. And he was clear that any treasonous action a person took was covered by either category:</p>
<blockquote>
<p>“<a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">Every act which</a>, if performed with regard to a public and foreign enemy, would amount to ‘an adhering to him, giving him aid and comfort,’ will, with regard to a domestic rebellion, constitute a levying of war. And, conversely, every act which, with regard to domestic rebellion, will constitute ‘a levying of war,’ will, with regard to a foreign enemy, constitute ‘an adhering to him, giving him aid and comfort.’”</p>
</blockquote>
<h2>Trump’s defenders</h2>
<p>Many of those who support Trump have <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298133/20240118180130038_23-719_Amicus%20Brief.pdf">argued his actions don’t amount to engaging in insurrection</a>. They say that, therefore, he can’t be disqualified from office for that reason. </p>
<p><a href="https://www.supremecourt.gov/DocketPDF/23/23-719/297012/20240118111500480_23-719%20-%20Amicus%20Curiae%20Brief.pdf">Several of his allies</a> have even <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">pointed out</a> that <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298119/20240118165017246_Amicus%20Brief%20Final.pdf">nobody has accused him of giving “aid and comfort”</a> to the insurrectionists. </p>
<p>At least one of those supporters has gone so far as to claim that the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298119/20240118165017246_Amicus%20Brief%20Final.pdf">failure to accuse him of “aid and comfort” is a reason to overturn</a> the Colorado ruling and declare Trump eligible to hold office.</p>
<p>Trump did not personally attack a police officer on Jan. 6, 2021, or aid and abet a foreign nation. In legal terms, then, Trump did not offer “aid and comfort” to “enemies” of the United States: The people he <a href="https://apnews.com/article/capitol-siege-florida-donald-trump-conspiracy-congress-040a763522081e592af10fae682fda70">urged to march on the Capitol</a> and <a href="https://www.cnn.com/2021/01/07/politics/trump-history-comments-trnd/index.html">said kind words to</a> may have been enemies of democracy. But like Trump himself, they were American citizens, and therefore, constitutionally speaking, could not be enemies of the United States. </p>
<p>Rather, they were insurrectionists. And as Hoffman’s 1863 statement makes clear, the constitutional law of treason does not differentiate between supporting them and being among them.</p><img src="https://counter.theconversation.com/content/221460/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber filed an amicus brief in the Colorado case, and another in the U.S. Supreme Court, that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment.</span></em></p>US law has long held that those who support rebels and insurrectionists are just as guilty of treason as those who support foreign enemies.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2207302024-01-25T16:08:35Z2024-01-25T16:08:35ZWhat can we learn from the history of pre-war Germany to the atmosphere today in the U.S.?<p><em>The Guardian</em> <a href="https://www.theguardian.com/us-news/2024/jan/13/end-of-democracy-bernie-sanders-on-if-trump-wins-and-how-to-stop-him">recently published an interview with U.S. Sen. Bernie Sanders</a> about what happens if Donald Trump wins this year’s presidential election in the United States. </p>
<p>His dire answer: “It will be the end of democracy.”</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.sshrc-crsh.gc.ca/society-societe/icw-ca/index-eng.aspx">Prof. David Dyzenhaus will talk about his research on politics and the rule of law in an interview with Scott White, The Conversation Canada's Editor-in-Chief. Click here to join the event for free by registering.</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>The challenge the U.S. faces, Sanders said, “is to be able to show people that government in a democratic society can address their very serious needs. If we do that, we defeat Trump. If we do not, then we are the Weimar Republic of the early 1930s.”</p>
<p>Sanders is of course evoking the extreme political polarization and social discontent of the last three years of Germany’s first experiment with democracy. </p>
<p>That experiment ended with Adolf Hitler’s seizure of power in 1933. </p>
<p>The senator is right that there are frightening echoes of the end game of Weimar in western democracies. But in the U.S., at least, his timing is off. The United States already is the Weimar Republic of the early 1930s.</p>
<h2>Polarization in pre-war Germany</h2>
<p>Naturally, there are some differences. </p>
<p>In Germany, the main fault line of polarization was between the far-right factions, with the Nazi Party the most prominent, and the Communist Party — both of which contested elections with the express intention of destroying democracy if they won power. In contrast, the main division in the U.S. is between Democrats and the far-right groups that dominate Trump’s Republican party. </p>
<p><a href="https://www.law.utoronto.ca/faculty-staff/full-time-faculty/david-dyzenhaus">My expertise</a> is not political science but law, in particular the rule of law. I study the nature of law and its relationship to politics. </p>
<p>I wrote <a href="https://academic.oup.com/book/2553">a book about the problems of the legal and political order in pre-Hitler Germany</a> — and why those circumstances remain highly relevant to contemporary debates about what’s going on in the United States and other western democracies (including debates in <a href="https://www.law.utoronto.ca/news/demise-rule-law-in-canada-professor-david-dyzenhaus-lawyers-daily">Canada</a>).</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman and a man read a poster glued to a post." src="https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=482&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=482&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=482&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=606&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=606&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=606&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Berlin citizens read the 1932 emergency powers decree.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The <a href="https://www.theholocaustexplained.org/the-nazi-rise-to-power/the-weimar-republic/the-weimar-constitution/">Weimar Constitution</a> had existed for only 14 years when Hitler forced the German parliament to make his will the ultimate source of legal authority. </p>
<p>His path to power was facilitated by the ease with which Article 48 of the constitution — the emergency powers provision that allowed the president to bypass parliament — could be exploited.</p>
<h2>The resilience of the U.S. Constitution</h2>
<p>In contrast, the U.S. Constitution dates from 1789, which makes it the most established constitution of the oldest democracy. It showed its resilience on Jan. 6, 2021, in the failed attempt by Trump and his supporters to take power by insurrection after he lost the 2020 election to Joe Biden. </p>
<p><a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/628309/EPRS_BRI(2018)628309_EN.pdf">Konrad Adenauer</a>, West Germany’s first president who was elected after the Second World War, later reflected that the problem with Weimar was not its constitution, but that there weren’t enough democrats — meaning politicians, judges, lawyers and others who believed in democracy.</p>
<p>Three years ago in the United States, only a small number of small-d democrats stood between a successful coup and Biden taking office: the Republican-appointed judges who rejected Trump’s attempts in the courts to contest particular elections, the Republican election officials who withstood the pressure to rig the votes in their districts and even Vice-President Mike Pence, though it seems that <a href="https://nymag.com/intelligencer/2021/09/dan-quayle-convinced-mike-pence-to-reject-trumps-coup.html">he wavered dangerously until the last minute</a>.</p>
<p>Weimar democracy was similarly salvageable until the end of 1932, and so the analogy between it and the U.S. in early 2024 is strong.</p>
<p>The role of lawyers and courts in such scenarios can be crucial.</p>
<h2>Coup d'etat in Prussia paved the way</h2>
<p>In 1932, the German federal government — dominated by right-wing aristocrats — used the emergency powers provision of the Weimar constitution to replace the legal state government of Prussia, one of 39 separate states that made up the German republic. <a href="https://doi.org/10.2307/2952263">This coup d’état effectively took over the powers</a> of a state that was the main bastion of democratic resistance to the extreme right-wing forces of the time.</p>
<p>At the time of the coup, the Prussian state government considered armed resistance. But because it felt such action would end in defeat and, as social democrats, they were committed to legality, they chose to challenge the constitutional validity of the decree before the Staatsgerichtshof — the court set up by the Weimar Constitution to resolve constitutional disputes between the federal government and the states in Germany’s federation.</p>
<p>After hearing oral arguments between Oct. 10-17, 1932, the court fudged its decision in a way that effectively upheld the decree in a judgment on Oct. 25.</p>
<p><a href="https://aeon.co/essays/carl-schmitts-legal-theory-legitimises-the-rule-of-the-strongman">This decision is regarded as a significant precursor to Hitler’s seizure of power in 1933</a> and his decision to make himself the ultimate source of legal authority in Germany, thus effectively putting him beyond the reach of the law.</p>
<p>Some of the most prominent legal scholars of the time appeared on both sides of the dispute, <a href="https://www.jstor.org/stable/23735189">including Carl Schmitt</a>, a fascist legal theorist who presented the federal government’s side in the Prussia case and then signed up with the Nazis after 1933.</p>
<h2>Nazi lawyer still admired</h2>
<p>Schmitt was determined throughout his career to use legal arguments to destroy liberal democracy from within. Today, <a href="https://www.nybooks.com/online/2020/01/15/william-barr-the-carl-schmitt-of-our-time/">Schmitt is very popular</a> — along with other right-wing figures from the Weimar period — with the far-right coterie of lawyers who tried to mastermind Trump’s own attempt at a coup in January 2021.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man is featured on the cover of an old academic journal" src="https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=779&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=779&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=779&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=979&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=979&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=979&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘The View of the Third Reich’ – lawyer Carl Schmitt on the cover page of the German journal Der Wirtschafts-Ring (The Economic Ring) in 1934.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The U.S. Supreme Court will soon <a href="https://www.cbc.ca/news/world/us-supreme-court-trump-cases-1.7064843">decide current</a> and potential future cases involving Trump’s challenges to the rule of law. For example, Trump has mused that if he is re-elected, <a href="https://www.brennancenter.org/our-work/analysis-opinion/trump-wants-use-military-against-his-domestic-enemies-congress-must-act">he could use the Insurrection Act</a> to suppress any political protests.</p>
<p>The Supreme Court’s decisions on cases involving Trump’s legal authority could be as momentous for the future of democracy in the United States as the decision of Staatsgerichtshof in 1932.</p>
<p>With a majority of conservative judges on the U.S. Supreme Court — including Justice Clarence Thomas, <a href="https://www.pbs.org/newshour/politics/virginia-thomas-the-wife-of-justice-clarence-thomas-agrees-to-interview-with-jan-6-panel">whose wife has been accused of trying to help Trump overturn his election defeat</a> — the portents for democracy and the rule of law are not good.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Prof. David Dyzenhaus will talk about his research on politics and the rule of law in an interview with Scott White, The Conversation Canada’s Editor-in-Chief. Click here to join the event for free by registering.</span>
<span class="attribution"><a class="source" href="https://www.sshrc-crsh.gc.ca/society-societe/icw-ca/index-eng.aspx">Prof. David Dyzenhaus will talk about his research on politics and the rule of law in an interview with Scott White, The Conversation Canada's Editor-in-Chief. Click here to join the event for free by registering.</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure><img src="https://counter.theconversation.com/content/220730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Dyzenhaus receives funding from SSHRC for related research projects</span></em></p>Adolf Hitler’s rise to power was aided by courts and lawyers in pre-war Germany. A similar situation exists today in the United States.David Dyzenhaus, Professor of Law and Philosophy, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213962024-01-19T01:58:08Z2024-01-19T01:58:08ZTrump defends himself to the Supreme Court, saying he called ‘for peace, patriotism, respect for law and order’ on Jan. 6 and is not an insurrectionist<figure><img src="https://images.theconversation.com/files/570080/original/file-20240118-23-m47epr.jpeg?ixlib=rb-1.1.0&rect=33%2C0%2C5553%2C3718&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S Supreme Court will decide whether former President Donald Trump can be kept off the 2024 presidential ballot. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/4df6455230514c2b8f930927d90862af/photo?Query=Trump%20colorado%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=268&currentItemNo=4">AP Photo/Mariam Zuhaib</a></span></figcaption></figure><p>Filing late in the day to meet the Jan. 18, 2024, deadline, former President Donald <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298125/20240118171750343_Trump%20v%20Anderson%20Petitioner%20Brief%20on%20the%20Merits.pdf">Trump submitted a brief to the U.S. Supreme Court</a> that asked the justices to overturn the <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">Colorado Supreme Court’s decision</a> to remove him from that state’s primary ballot. </p>
<p>Norma Anderson, a Republican and former Colorado state lawmaker, and several other plaintiffs had <a href="https://www.citizensforethics.org/wp-content/uploads/2023/09/Anderson-v-Griswold_Verified-Petition_2023.09.06_01.pdf">filed suit in September 2023</a> to keep Trump off the 2024 Colorado ballots. The plaintiffs argued that Trump was disqualified from public office because his “efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States.” Their arguments were based on <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a> of the Constitution, which bans insurrectionists from holding public office.</p>
<p>The <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">Colorado Supreme Court issued its ruling</a> in the case, originally known as Anderson v. Griswold, on Dec. 19. The Colorado justices concluded that Trump was disqualified from holding the office of the president because of his actions on Jan. 6, 2021, and they affirmed the trial court’s conclusion that Trump engaged in an insurrection. </p>
<p>“These actions constituted overt, voluntary, and direct participation in the insurrection,” <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">the court majority wrote</a>. </p>
<p>Trump faces more than a dozen similar <a href="https://www.axios.com/2024/01/07/trump-ballot-remove-14th-amendment-map">legal challenges to his candidacy in other states as well</a>, based on Section 3. Many complainants, jurists and constitutional law scholars argue that Trump is disqualified to hold office because he “engaged in insurrection or rebellion” against the U.S. based on his actions before, during and after the attack on the U.S. Capitol on Jan. 6, 2021.</p>
<p>Trump appealed the Colorado Supreme Court’s decision to the U.S. Supreme Court, and the justices agreed to consider the case. In his Jan. 18 brief, Trump presented a range of arguments for why the Colorado decision was wrong. Chief among them: He claimed that Section 3 of the 14th Amendment does not apply to the presidency and that he did not engage in an insurrection against the United States. </p>
<p>Describing his actions on Jan. 6, 2021, Trump’s brief says “Calling for peace, patriotism, respect for law and order, and directing the Secretary of Defense to do what needs to be done to protect the American people is in no way inciting or participating in an ‘insurrection.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark winter coat standing on a stage outside in front of a lot of people, with many American flags behind him." src="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump speaks at the ‘Stop The Steal’ Rally on Jan. 6, 2021, in Washington.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-at-the-stop-the-steal-rally-news-photo/1294908917?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>Officers and insurrections</h2>
<p>Trump’s brief attacks the Colorado Supreme Court’s “dubious interpretation of (S)ection 3 of the Fourteenth Amendment.” He argues that Section 3 does not apply to the presidency because the “President is not an ‘officer of the United States.’” Trump points to <a href="https://www.archives.gov/founding-docs/constitution-transcript">other parts of the Constitution</a> that use the term “Officer,” and he argues that an “Officer of the United States” only includes political appointees, such as the Secretary of State, and not anyone who is elected to an office. </p>
<p>There is merit to this argument, but Trump confuses the original intent of the Framers, when the Constitution was initially ratified, with the intent of the <a href="https://constitutioncenter.org/the-constitution/drafting-table-mobile/item/amendment-xiv">39th Congress that drafted the 14th Amendment</a> decades after the nation’s founding. Several constitutional law scholars argue that the 39th Congress did intend for Section 3 <a href="https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf">to apply to the presidency</a> because congressional records highlight senators’ and representatives’ specific comments that it should.</p>
<p>Whether Section 3 applies to the presidency is likely the first question that the Supreme Court will have to answer. While Trump also claims that he did not engage in an insurrection, the justices likely will not consider whether he did or not because the court generally does not disturb the factual conclusions of trial courts. </p>
<p>But the justices may have to consider the other legal questions that Trump raises. Trump argues that even if Section 3 applies to the presidency, it cannot be enforced because Congress has not passed a law to enforce it. But <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3946576">as a constitutional law scholar</a>, I believe that perhaps his strongest argument and the justices’ easiest legal question to answer turns to the plain text of Section 3, which states that it bars insurrectionists and rebels from holding office. It does not say anything about running for office.</p>
<h2>Bullets, not ballots</h2>
<p><a href="https://www.britannica.com/topic/Fourteenth-Amendment">The 14th Amendment, ratified in 1868</a>, is considered a “<a href="https://www.gilderlehrman.org/history-resources/essays/reconstruction-amendments-official-documents-social-history">Reconstruction Amendment</a>,” along with the 13th and 15th amendments. Congress and state legislatures ratified the Reconstruction Amendments in the years immediately following the end of the Civil War. Within that context, the drafters of the Reconstruction Amendments sought, among many things, to prevent Confederates from <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">serving in public office following their unsuccessful rebellion</a> against the Union. </p>
<p>Section 3 of the 14th Amendment says:</p>
<blockquote>
<p>“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” </p>
</blockquote>
<p>With 15 commas, the meaning and application of Section 3 may confuse many readers. Constitutional law scholar Mark Graber provided a thorough discussion of each sentence fragment and clause in a <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">recent article for The Conversation</a>. In his summary of this section of the 14th Amendment, he says “These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A page from a legal document filed 'In the Supreme Court of the United States'" src="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A page from the appeal by former President Donald Trump asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/f1e2b09db9de4b658048c40c6627b9cf/photo?Query=Trump%20colorado%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=268&currentItemNo=5">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>Settling the unsettled</h2>
<p>The Supreme Court agreed to consider Trump’s appeal in early January 2024 because whether Trump is constitutionally qualified to serve as the president of the United States again is a critical question in an area of law that is not settled. While the Supreme Court <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10569">considered some general cases of insurrection and rebellion</a> following the Civil War, the Supreme Court has never faced this specific question regarding Section 3.</p>
<p>The Supreme Court will consider whether the Colorado Supreme Court erred in ordering the former president excluded from the 2024 presidential primary ballot.</p>
<p>But this specific question also presents a number of related legal questions that the Supreme Court could also decide, ranging from whether Section 3 applies to the presidency to whether Section 3 only prohibits a candidate from serving in office as opposed to appearing on any ballot. Then, of course, there is the factual issue as to whether the former president “engaged in an insurrection or rebellion” against the United States.</p>
<p>The Supreme Court will hear oral arguments in <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">Trump v. Anderson on Feb. 8, 2024</a>.</p><img src="https://counter.theconversation.com/content/221396/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>No conflicts.</span></em></p>The first shoe has dropped in the Supreme Court’s process of considering whether Donald Trump is eligible to be president.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2180102024-01-12T13:28:25Z2024-01-12T13:28:25ZBiden, like Trump, sidesteps Congress to get things done<figure><img src="https://images.theconversation.com/files/568634/original/file-20240110-21-zk1t05.jpeg?ixlib=rb-1.1.0&rect=18%2C4%2C3008%2C2032&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump and President Joe Biden.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-combination-of-pictures-created-on-september-29-2020-news-photo/1228795132?adppopup=true">Jim Watson,Saul Loeb/AFP via Getty Images</a></span></figcaption></figure><p>With two presidents – one current and one former – running against each other <a href="https://theconstitutionalist.org/2023/02/12/can-trump-pull-a-cleveland/">for the first time since 1912</a>, the 2024 election presents voters with the unique opportunity to compare how Democrat Joe Biden and Republican Donald Trump, who are <a href="https://www.pbs.org/newshour/politics/potential-rematch-between-biden-and-trump-in-2024-could-shake-up-american-politics">each likely to get their party’s nomination</a>, actually used the authority of the presidency. </p>
<p>Examining Biden and Trump from this perspective, it’s clear that while they pursued vastly different policies, they often used presidential power in remarkably similar ways.</p>
<p>Both Trump and Biden have tried to achieve their policy goals in ways that avoided having to get Congress’ cooperation. There are a few exceptions, with major legislation passed early in the presidents’ terms when they had a unified government – Trump with the <a href="https://www.cbsnews.com/news/trump-to-sign-tax-bill-before-leaving-for-holiday/">2017 tax cuts</a> and Biden with the <a href="https://www.npr.org/2021/11/15/1055841358/biden-signs-1t-bipartisan-infrastructure-bill-into-law">2021 infrastructure bill</a> and <a href="https://www.whitehouse.gov/cleanenergy/inflation-reduction-act-guidebook/#:%7E:text=On%20August%2016%2C%202022%2C%20President,change%20in%20the%20nation%27s%20history.">2022 Inflation Reduction Act</a>.</p>
<p>But more frequently, they aimed to accomplish their objectives either through their power over the executive branch and administrative agencies or in foreign policy, where a president possesses more discretion than in domestic affairs.</p>
<p>Such similarities in men who could not be more different in their political values and policy priorities naturally raise the question: Why do Trump and Biden seem so alike in how they are using presidential power? <a href="https://scholar.google.com/citations?user=9I_KwakAAAAJ&hl=en">As a scholar</a> who studies how the constitutional structure of American political institutions effects the authority and behavior of individuals operating within those institutions, I see these similarities as being driven by the fact that, as presidents, they faced the same incentives and constraints.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit, seated at a desk, holding up a signed document and flanked by two other men in suits who are standing." src="https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568655/original/file-20240110-23-axkvme.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump holds up a signed executive order on June 24, 2019, to increase sanctions on Iran, flanked by Treasury Secretary Steven Mnuchin, left, and Vice President Mike Pence.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpExecutiveOrders/a89440a71ec14f0384a2f0d9dda60685/photo?Query=Trump%20executive%20order%20visa%20muslim&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1309&digitizationType=Digitized&currentItemNo=NaN&vs=true&vs=true">AP Photo/Alex Brandon, File</a></span>
</figcaption>
</figure>
<h2>Policy through executive order</h2>
<p>One place where this similarity is particularly evident is in the number and scope of Trump’s and Biden’s executive orders, which recent presidents have used to order administrative agencies to enact particular policies unilaterally. </p>
<p>Through their first three years in office, the two presidents issued a comparable number of executive orders – <a href="https://ballotpedia.org/Joe_Biden%27s_executive_orders_and_actions">127 for Biden</a> <a href="https://www.federalregister.gov/presidential-documents/executive-orders">and 137 for Trump</a>, often for major policy objectives. </p>
<p>For example, Trump’s infamous 2017 “Muslim ban” restricting the immigration into the U.S. of people from several majority-Muslim countries, as well as immigrants from Venezuela and North Korea, was instituted through two <a href="https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">executive</a> <a href="https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">orders</a>. </p>
<p>Similarly, Biden’s sweeping effort <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/24/fact-sheet-president-biden-announces-student-loan-relief-for-borrowers-who-need-it-most/#:%7E:text=Forgive%20loan%20balances%20after%2010,debt%2Dfree%20within%2010%20years.">in 2022</a> to <a href="https://www.nasfaa.org/news-item/27820/Answering_the_10_000_Question_Biden_Takes_Executive_Action_on_Student_Loan_Cancellation_Extends_Repayment_Pause">cancel student loan debt</a> was also initiated through an executive order. </p>
<p>In foreign policy, <a href="https://www.politico.com/news/2020/09/15/trump-abraham-accords-palestinians-peace-deal-415083">Trump was able to conclude the Abraham Accords</a> in 2020, normalizing relations between Israel and several Middle Eastern nations. He also unilaterally pulled <a href="https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html">out of the Paris climate accord</a> in 2017 without congressional input. </p>
<p>When Biden entered office in 2020, he reversed Trump’s action and <a href="https://www.state.gov/the-united-states-officially-rejoins-the-paris-agreement/">reentered the Paris climate accord</a> and <a href="https://www.nytimes.com/2021/08/31/us/politics/biden-defends-afghanistan-withdrawal.html">ended the war in Afghanistan</a> by withdrawing U.S. troops there.</p>
<h2>Trouble in the party</h2>
<p>One reason for the two presidents’ similar exercise of executive power is the circumstances of their presidencies. </p>
<p>Despite their differences, Trump and Biden have faced many of the same isolating conditions that prevent them from achieving great victories through legislation, which forced them to act in those areas where presidential power is stronger. </p>
<p>While <a href="https://spia.uga.edu/faculty_pages/carson/forum17.pdf">both had</a> <a href="https://www.voanews.com/a/usa_us-politics_control-white-house-and-congress-democrats-have-2-years-make-big-changes/6201047.html">unified government</a> in the first half of their terms with their party controlling both houses of Congress, both of their parties were internally fractured. </p>
<p>Trump’s attempt to repeal President Barack Obama’s Affordable Care Act was <a href="https://www.nbcnews.com/politics/congress/senate-gop-effort-repeal-obamacare-fails-n787311">famously torpedoed</a> by a dramatic thumbs-down from Republican Sen. John McCain. </p>
<p>These Republican fractures became even more evident as Trump’s presidency wore on. One crucial example of this division: Trump was the only president to have <a href="https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump">members of his own party</a> <a href="https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/15/967878039/7-gop-senators-voted-to-convict-trump-only-1-faces-voters-next-year">vote for his removal</a> from office in his two historic impeachments. </p>
<p>Biden has been forced to deal with the consistent threat of potential defections from Democratic Sens. Joe Manchin and Kyrsten Sinema. To get their crucial votes, he had to substantially <a href="https://apnews.com/article/biden-politics-kyrsten-sinema-joe-manchin-congress-c0d40a6f2490b2613a690995daca7e11">water down</a> his “Build Back Better” infrastructure bill. </p>
<p>Sinema has since left the Democratic Party to <a href="https://www.pbs.org/newshour/politics/kyrsten-sinema-is-becoming-an-independent-what-does-that-mean-for-the-senate">become an independent</a>, and Manchin is <a href="https://www.bloomberg.com/news/articles/2023-11-15/joe-manchin-absolutely-considering-2024-presidential-run-he-says">exploring a third-party run for president</a> against Biden. The <a href="https://www.newsweek.com/joe-manchin-switching-party-democrat-independent-senate-slim-majority-1819160">Democrats’ Senate majority is too slim</a> to allow the White House to ignore either of these troublesome senators.</p>
<p>After the midterm elections, <a href="https://www.wsj.com/articles/what-divided-government-means-for-washington-11668642809">both presidents found</a> <a href="https://www.wsj.com/articles/health-care-trump-animate-voters-survey-shows-1541548869">themselves facing divided government</a>, with the House of Representatives held by the opposing party. </p>
<p>The House in both cases was not afraid to flex its muscle against the president, freely employing its impeachment authority against both of them. They <a href="https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html">impeached Trump</a> <a href="https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html">twice</a> and have opened an <a href="https://apnews.com/article/hunter-biden-impeachment-inquiry-house-republicans-51576c5fe4294be2605a14fa81075196">impeachment inquiry</a> against Biden, which may soon lead to a formal impeachment vote.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A young girl sits at a table holding a pen, surrounded by adults." src="https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568664/original/file-20240110-29-4iicgx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gianna Floyd, the daughter of George Floyd, holds a pen used by U.S. President Joe Biden at the White House on May 25, 2022, to sign an executive order enacting further police reform.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/gianna-floyd-the-daughter-of-george-floyd-holds-a-pen-used-news-photo/1399292579?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<h2>The Constitution rules</h2>
<p>Both presidents have been similarly unpopular with Americans. According to Gallup, both presidents had an <a href="https://news.gallup.com/poll/329384/presidential-approval-ratings-joe-biden.aspx">average approval rating of 43%</a> in the third year of their administrations, and this unpopularity has meant that neither Trump nor Biden has been able to effectively utilize the bully pulpit to force change.</p>
<p>In these conditions, it is no surprise that Trump and Biden turned to the one source of power still available to them: the Constitution. </p>
<p>The structure of American political institutions, <a href="https://www.usa.gov/branches-of-government#:%7E:text=Learn%20about%20the%20executive%2C%20legislative,will%20have%20too%20much%20power.">set up by the Constitution</a>, affects the authority and behavior of individuals operating within those institutions. With that in mind, it is apparent that the policy successes and failures of the Trump and Biden administrations have largely lined up with the powers that the Constitution does and does not give presidents. </p>
<p>With Congress either too obstinate or too polarized to act on the president’s agenda, a president will naturally use the tools that are available to him. The Constitution dictates that those tools are primarily found in administrative actions and foreign policy.</p>
<p>By looking at the Trump and Biden administrations from this constitutional perspective, it’s clear how, despite the hyperpolarization of our politics, the Constitution continues to be influential in the power it grants presidents operating without the cooperation of Congress. </p>
<p>Trump and Biden are very different presidents. Yet, in working from the same constitutional toolbox, they used the means available to their office in similar ways, even in the pursuit of very dissimilar ends.</p><img src="https://counter.theconversation.com/content/218010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jordan Cash does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Biden and Trump are polar opposites when it comes to policy. But they have wielded the power of the presidency in similar ways.Jordan Cash, Assistant Professor of Political Science, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2187642024-01-09T13:26:55Z2024-01-09T13:26:55ZVoters don’t always have final say – state legislatures and governors are increasingly undermining ballot measures that win<figure><img src="https://images.theconversation.com/files/566723/original/file-20231219-19-nsxbqv.jpeg?ixlib=rb-1.1.0&rect=14%2C7%2C4778%2C3176&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of Issue 1, which would codify reproductive rights, including abortion, in the Ohio Constitution, cheer election results on Nov. 7, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supporters-of-ohio-issue-1-cheer-as-results-come-in-at-a-news-photo/1769693584?adppopup=true">Andrew Spear/Getty Images</a></span></figcaption></figure><p><a href="https://www.pewresearch.org/science/2023/11/14/confidence-in-scientists-medical-scientists-and-other-groups-and-institutions-in-society/">Less than half of Americans</a> trust elected officials to act in the public’s interest. </p>
<p>When voters want something done on an issue and their elected officials fail to act, they may turn to citizen initiatives to pursue their goals instead. The citizen initiative process varies by state, but in general, citizens collect signatures to have an issue put directly on the ballot for the voters to voice their preferences. Nearly half the states, 24 of them, <a href="https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-processes">allow citizen initiatives</a>. </p>
<p>These measures, also called “ballot initiatives,” often focus on the controversial issues of the day. Citizen initiatives <a href="https://ballotpedia.org/Marriage_and_family_on_the_ballot">on same-sex marriage</a> and <a href="https://www.sciencedirect.com/science/article/pii/S0955395922000056">marijuana legalization</a> have been on many state ballots through the years. Abortion rights have repeatedly <a href="https://www.nbcnews.com/politics/elections/abortion-rights-won-every-election-roe-v-wade-overturned-rcna99031">been on the ballot since 2022</a>, after the Supreme Court <a href="https://www.oyez.org/cases/2021/19-1392">overturned the constitutional protection for abortion</a>, and more voters can expect to <a href="https://apnews.com/article/abortion-ballot-measure-2024-state-vote-e7d635835dc3a440789ad87787553ec1">vote on the issue in 2024</a>.</p>
<p>I am an <a href="https://annewhitesell.com/research-2/">American politics scholar</a> who studies the connection between representation and public policy. In American democracy, the people expect to have a voice, whether that comes through electing representatives or directly voting on issues.</p>
<p>Yet it is <a href="https://www.bloomberg.com/news/articles/2018-10-12/where-the-people-s-vote-can-be-negated-by-legislators">becoming increasingly common</a> for lawmakers across the country to not only ignore the will of the people, but also actively work against it. From 2010 to 2015, about 21% of citizen initiatives were <a href="https://ballotpedia.org/Legislative_alterations_of_ballot_initiatives">altered by lawmakers</a> after they passed. From 2016 to 2018, lawmakers altered nearly 36% of passed citizen initiatives. </p>
<figure class="align-center ">
<img alt="A big sign projected on a wall that says 'Eggs & Issues' with a man to the right at a lectern, talking." src="https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&rect=17%2C4%2C2977%2C1904&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566717/original/file-20231219-27-klyniy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Maine Gov. Paul LePage refused to expand Medicaid in his state after voters in 2018 passed an initiative authorizing it.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/gov-paul-lepage-speaks-at-eggs-issues-breakfast-at-the-news-photo/987167644?adppopup=true">Gregory Rec/Portland Portland Press Herald via Getty Images</a></span>
</figcaption>
</figure>
<h2>Invalidate, weaken, repeal</h2>
<p>Here’s what some of those cases look like, from successful to unsuccessful efforts to alter the will of the people: </p>
<p>• In November 2023, <a href="https://apnews.com/article/ohio-abortion-amendment-election-2023-fe3e06747b616507d8ca21ea26485270">Ohio voters passed an amendment to their state’s constitution</a> protecting the right to abortion. Within a week, a group of Ohio Republican lawmakers <a href="https://ohiocapitaljournal.com/2023/11/13/some-ohio-gop-lawmakers-attempting-to-undermine-democratic-process-after-voters-protect-abortion/">declared the amendment to be invalid</a> and <a href="https://www.theguardian.com/us-news/2023/nov/17/ohio-abortion-rights-republicans-overturn">introduced legislation</a> that would strip state courts from having authority to rule on the issue of abortion. Ohio House Speaker, Republican Jason Stephens, <a href="https://ohiocapitaljournal.com/2023/11/15/pumping-the-brakes-ohio-house-speaker-dismisses-effort-to-limit-court-jurisdiction-on-issue-1/">rejected the proposed legislation</a>.</p>
<p>• In July 2018, Washington, D.C., voters approved an <a href="https://www.washingtonpost.com/dc-md-va/2022/11/08/dc-initiative-82-results-wage/">increase in the minimum wage</a> for tipped workers. Three months later, the City Council <a href="https://ballotpedia.org/Washington,_D.C.,_Initiative_77,_Minimum_Wage_Increase_for_Tipped_Workers_(June_2018)">repealed the initiative</a>.</p>
<p>• In 2016, voters in South Dakota <a href="https://www.nytimes.com/elections/2016/results/south-dakota-ballot-measure-22-campaign-finance-overhaul">supported an initiative</a> to revise campaign finance and lobbying laws and create an ethics commission. Governor Dennis Daugaard <a href="https://www.argusleader.com/story/news/politics/2017/02/02/daugaard-signs-bill-eliminating-voter-approved-ethics-law/97399274/">signed a law</a> repealing the initiative in February 2017. Another citizen initiative to create an ethics commission was <a href="https://www.governing.com/archive/gov-campaign-finance-ethics-ballot-measures-2018.html">on the ballot in 2018</a>, but did not pass.</p>
<h2>Revise and amend</h2>
<p>Often lawmakers rewrite laws passed through initiative. Some revisions change key components of the initiatives, while others amend technical details.</p>
<p>• <a href="https://boltsmag.org/ohio-voters-issue-2-legalized-marijuana-equity-provisions-expungement/">Ohioans voted in favor of legalizing marijuana</a> in November 2023. In that initiative, part of the tax revenue from marijuana sales would go to a financial assistance program for those who show “social and economic disadvantage.” The Ohio Senate <a href="https://www.cleveland19.com/2023/12/09/breaking-down-bud-ohio-senate-passes-bill-that-nixes-social-equity-fund-put-place-under-issue-2/">passed a bill</a> the following month that would instead use the tax revenue to fund jails and law enforcement.</p>
<p>• Massachusetts voters <a href="https://ballotpedia.org/Massachusetts_Marijuana_Legalization,_Question_4_(2016)#:%7E:text=The%20law%20implemented%20the%20following,retailer%20operating%20within%20the%20locality.">passed recreational marijuana legalization</a> in 2016. In 2017, the Legislature passed a bill to <a href="https://apnews.com/3cbe8b27c83144f391713d6d1fb31978">increase the excise tax</a> on marijuana from the 3.75% set in the citizens’ initiative to 10.75%. </p>
<p>• In 2018, Utah voters made adults with income up to 138% of the federal poverty level eligible for Medicaid – a federal-state health insurance program for low-income individuals and those with disabilities. The state Legislature applied to the federal government for waivers to <a href="https://www.commonwealthfund.org/blog/2019/one-step-forward-two-steps-back-utahs-medicaid-expansion">lower the income limit to 100% of the federal poverty level</a>, which curtailed the expansion voters approved.</p>
<p>• Arizona voters <a href="https://apnews.com/article/business-education-arizona-971374029a2af7d8f67b8366bdd89c3b">approved a tax increase</a> on the wealthy to fund the state’s schools in 2020. In 2021, the Legislature responded by <a href="https://apps.azleg.gov/BillStatus/BillOverview/75928">exempting business earnings from the tax</a>. There was an attempt by citizen initiative later that year to <a href="https://apnews.com/article/business-arizona-phoenix-doug-ducey-arizona-supreme-court-b8adfe654d0a5aa12b5054170e0f7df4">repeal the legislature’s law exempting business earnings</a>, but it did not gather enough signatures from citizens to make it to the ballot.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A green-bordered sign on a window that says 'VOTE NO on Initiative #77.'" src="https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566732/original/file-20231219-17-jxqxos.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Initiative #77 was a 2018 ballot measure to gradually raise the minimum wage that tipped workers receive; passed by Washington, D.C. voters, the City Council repealed it.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-walks-by-a-vote-no-on-initiative-poster-on-june-18-2018-news-photo/977876412?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Governors object</h2>
<p>In some cases, it is not the legislature that opposes the will of the voters, but the governor. In recent years, several Republican governors have refused to implement Medicaid expansions passed by voter initiatives.</p>
<p>• Maine’s former governor, Paul LePage, said he would go to jail before he would <a href="https://www.pressherald.com/2018/07/12/paul-lepage-says-hed-go-to-jail-before-he-expands-medicaid/">implement Medicaid expansion</a> after it passed by voter initiative in 2017. Medicaid was not expanded until <a href="https://www.pressherald.com/2019/01/03/mills-signs-executive-order-to-implement-medicaid-expansion/">Democrat Janet Mills took office</a> in 2019.</p>
<p>• <a href="https://www.nbcnews.com/politics/politics-news/missouri-governor-won-t-fund-medicaid-expansion-flouting-state-constitution-n1267265">Missouri Governor Mike Parson</a> said he would not move forward with the 2020 voter-passed Medicaid expansion because it would not pay for itself. In 2021, the <a href="https://apnews.com/article/courts-michael-brown-medicaid-3690befde29aa1b27406a3472fb566aa">Missouri Supreme Court</a> ruled the initiative valid and Medicaid expansion moved forward.</p>
<h2>Why they do it</h2>
<p>Lawmakers who rewrite or overturn ballot initiatives sometimes argue that <a href="https://doi.org/10.1007/s11109-014-9273-5">voters do not understand</a> what they are supporting. Lawmakers, unlike citizens, have to balance state budgets every year, and they often raise questions about how to pay for the policies or programs passed by initiative. </p>
<p>Lawmakers also argue that outside groups play an outsized role in passing ballot initiatives. While <a href="https://doi.org/10.1007/s11109-014-9282-4">political science research</a> provides some support for this claim, outside groups also have influence in the regular legislative process. And they often work to defeat initiatives as well.</p>
<p>Citizen initiatives became popular <a href="https://ballotpedia.org/History_of_initiative_and_referendum_in_the_U.S.">during the Progressive Era</a> of the early 20th century as a way to give power back to citizens. Then, as now, citizens felt political power was too concentrated in the hands of the wealthy. Initiatives were one way for everyday people to get more involved in their government. </p>
<p>That only half of states permit citizen initiatives suggests that political elites are <a href="https://doi.org/10.1177/153244000100100402">not always supportive</a> of a process that limits their own power. Historically, though, legislators have <a href="https://doi.org/10.1057/palgrave.polity.2300087">respected the results</a>. Some lawmakers, including Ohio Governor Mike DeWine, state they will continue to <a href="https://ohiocapitaljournal.com/2023/11/11/ohio-gov-dewine-accepts-will-of-the-people-on-abortion-marijuana-but-hold-on/">“accept” the will of the people</a>. To do otherwise undermines democracy.</p><img src="https://counter.theconversation.com/content/218764/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Whitesell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Election year 2024 will see citizen initiatives on the ballot across the country, some focused on abortion rights. But there’s a growing trend of lawmakers altering initiatives after they have passed.Anne Whitesell, Assistant Professor, Political Science, Miami UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2205802024-01-08T19:02:22Z2024-01-08T19:02:22ZTrump’s arguments for immunity not as hopeless as some claim<figure><img src="https://images.theconversation.com/files/568063/original/file-20240105-27-bf9x5s.jpg?ixlib=rb-1.1.0&rect=20%2C0%2C6689%2C4476&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump has claimed that presidents are immune from prosecution for official acts.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiotHarassment/8742cb120b814b02a1475cc58dfd3e9f/photo">AP Photo/Toby Brusseau</a></span></figcaption></figure><p>Former President Donald Trump’s claims of immunity from criminal prosecution will be argued before the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 9, 2024 – on an <a href="https://www.law.cornell.edu/wex/interlocutory_appeal">interlocutory appeal</a> from his trial for election interference. His arguments have been <a href="https://www.nytimes.com/2023/12/01/us/politics/trump-chutkan-immunity.html">rejected by a district court judge</a>, and the Supreme Court has <a href="https://www.cbsnews.com/news/supreme-court-declines-to-fast-track-trump-immunity-dispute-in-blow-to-special-counsel/">declined to weigh in</a> – for now. </p>
<p>Commentators have described his immunity arguments as “<a href="https://www.theguardian.com/us-news/2024/jan/01/donald-trump-legal-problems-ex-president-strategy">frivolous</a>” and “<a href="https://www.msnbc.com/opinion/msnbc-opinion/donald-trump-immunity-claim-rcna119695">absurd</a>.” But such accounts underestimate the arguments’ weight and at times misconstrue them. </p>
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<a href="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bearded man in a coat and tie stands in front of an American flag." src="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568064/original/file-20240105-27-2phosz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Special counsel Jack Smith is leading the federal prosecutions against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiot/e5bdeb21b0e84ddf9dd175e866831b32/photo">AP Photo/J. Scott Applewhite</a></span>
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<h2>A related absolute immunity already exists</h2>
<p>Trump claims he is immune from <a href="https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf">federal charges on seeking to overturn the 2020 elections</a>.</p>
<p>His first line of defense claims that his actions are covered by a constitutional immunity protecting presidents when they act in their official capacity. Trump’s lawyers are not claiming that he couldn’t be prosecuted for, say, <a href="https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters">shooting a pedestrian on 5th Avenue</a>. They are saying he can’t be prosecuted for so-called “official acts.”</p>
<p>A related immunity has been recognized in the past. </p>
<p>In 1982, the Supreme Court recognized that presidents have absolute immunity from civil lawsuits for their official actions. The principal rationale for this immunity was to allow the president “<a href="https://supreme.justia.com/cases/federal/us/457/731/">maximum ability to deal fearlessly and impartially with the duties of his office</a>.” The case described the president as “<a href="https://supreme.justia.com/cases/federal/us/457/731/">the officeholder [who] must make the most sensitive and far-reaching decisions</a> entrusted to any official under our constitutional system,” and held that the Constitution ensured he was not “<a href="https://supreme.justia.com/cases/federal/us/457/731/">unduly cautious in the discharge of his official duties</a>.” Presidents should not take official actions with the fear of civil liability hanging over their heads.</p>
<p>The question remained whether a president could be criminally charged for his official actions.</p>
<p>Trump claims he cannot. He argues that just as the Constitution protects presidents from civil lawsuits, it also protects them from criminal charges – and for an analogous reason: preserving the president’s ability to make official decisions free from the fear of criminal prosecution. </p>
<p>The brief of special counsel Jack Smith responded that it is actually <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf">good if presidents are worried about possible criminal liability</a>. Moreover, while immunity to civil liability makes sense, because civil lawsuits can be filed by practically everyone and for myriads of petty reasons, criminal charges usually relate to weightier concerns, and their filings involve various checks and balances. </p>
<p>Nevertheless, it is conceivable that courts would recognize presidential criminal immunity for official acts. If they do, the question would become how to define “official acts,” and whether the actions forming the basis for Trump’s charges, which include <a href="https://apnews.com/article/donald-trump-investigation-2024-joe-biden-05d0d0d7a0adbec796caecdc6862588b">many interactions with state and federal officials</a>, qualify under that definition. It seems reasonable to believe that many of them do not and are better described as the acts of a candidate seeking reelection. But some of these acts might qualify. </p>
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<h2>The complication from the impeachment clauses</h2>
<p>Yet, the argument for absolute criminal immunity faced a preliminary hurdle: <a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-7">Article 1, Section 3, of the U.S. Constitution</a> states that while “Judgment in Cases of Impeachment shall not extend further than to removal from Office … the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In other words, the Constitution explicitly contemplates the criminal prosecution of a president.</p>
<p>As a brief by the special counsel put it, “<a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.109.0.pdf">the Impeachment Judgment Clause entirely undermines the defendant’s claim</a> that a former president’s immunity from criminal prosecution should be ‘absolute’ … because a former president who has been impeached and convicted will be liable to criminal prosecution.”</p>
<p>Trump’s response conceded that convicted presidents could indeed face criminal charges for their official acts. But he went on to claim that since he was acquitted – only <a href="https://www.cnn.com/2021/02/13/politics/senate-impeachment-trial-day-5-vote/index.html">57 senators voted to convict him</a>, short of the 67 needed – he was not liable for criminal prosecution. </p>
<p>Trump’s response became the subject of much disparagement. The New York Times called it an “<a href="https://www.nytimes.com/2024/01/02/us/politics/trump-appeals-court-immunity.html">even more audacious argument</a>” than his claim of absolute immunity. But some of that criticism derives from an uncharitable interpretation of Trump’s claims. </p>
<p>Some critics construed the claim to mean that all officials who are subject to impeachment proceedings – which include “<a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-4">The President, Vice President and all Civil Officers of the United States</a>” – could not face criminal charges for official acts unless they were first impeached and convicted of them. </p>
<p>A group of former government officials and constitutional lawyers wrote in a legal brief that Trump’s argument “<a href="https://democracy21.org/wp-content/uploads/2023/12/23-3228-Amici-Br.-of-Former-Govt-Officials-and-Constitutional-Lawyers-No.-23-3228-DC-Cir.pdf">would permit countless officials to evade criminal liability</a>.” They went on to say, “Such an outcome would … contradict decades of practice in which the Executive Branch has prosecuted, and the Judicial Branch has convicted, civil officers for crimes committed while in office – regardless of whether they were first convicted in an impeachment trial.” The special counsel made <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf">similar objections</a>. </p>
<p>Indeed, impeachment proceedings are <a href="https://www.loc.gov/nls/new-materials/book-lists/the-history-of-impeachment/">very rare</a>, and most eligible offenders never face an impeachment. Moreover, as the critics point out, criminal acts may be discovered after the person in question has already left office. </p>
<p>But these strike me as straw-man arguments. Trump’s claim that a president must be impeached and convicted before he can be criminally liable for official acts is premised on the background absolute immunity Trump has claimed for the presidency. To quote from Trump’s brief before the district court: “<a href="https://s3.documentcloud.org/documents/24015079/trump-motion-to-dismiss.pdf">President Trump was acquitted</a> … after trial in the Senate, and he thus remains immune from prosecution.” </p>
<p>The key word is “remains” because, in Trump’s argument, the impeachment clause provides an exception to the alleged background presidential immunity: Presidents are criminally immune for their official actions, unless they are impeached and convicted for them. In other words, nothing in Trump’s argument prevents the criminal indictment of civil officers who have not been impeached at all, because they do not enjoy absolute criminal immunity to begin with.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A view of a formal legislative chamber with many people standing at their desks and on a dais." src="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568065/original/file-20240105-14-smb533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the U.S. Senate are sworn in Jan. 26, 2021, before beginning the second impeachment trial of Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressExplainingTrumpImpeachmentTrial/ee7eea151da8428e99603baf2320052f/photo">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>Does acquittal in an impeachment proceeding create or preserve criminal immunity?</h2>
<p>In his late briefs, Trump adds a second line of defense: He claims that his impeachment acquittal independently forestalls his criminal trial because of the ban on <a href="https://constitution.congress.gov/constitution/amendment-5/">“double jeopardy</a>.” That claim, if upheld, would provide Trump with criminal immunity whether presidents enjoy absolute immunity or not. The claim would work only if Trump’s impeachment and his criminal prosecution were based on the same acts – an allegation that is disputed by the special counsel. </p>
<p>But the claim, in any case, is weak and at odds with some other statements Trump’s briefs make. Indeed, since impeachment proceedings are <a href="https://www.govinfo.gov/content/pkg/CPRT-116HPRT38513/html/CPRT-116HPRT38513.htm">not limited to official acts</a>, accepting Trump’s double jeopardy argument would mean that a president could also become immune for unofficial criminal conduct – such as shooting a pedestrian on 5th Avenue – if he were impeached for that act but acquitted. </p>
<p>That argument proves too much, and would also be at odds with then-President Bill Clinton’s agreement to a five-year suspension of his Arkansas law license in a <a href="https://www.nytimes.com/2001/01/19/politics/clinton-reaches-deal-to-avoid-indictment-to-give-up-law-license.html">settlement aimed at preventing his subsequent criminal prosecution for perjury</a> – even though he was acquitted in the <a href="https://guides.loc.gov/federal-impeachment/bill-clinton">impeachment proceeding for that unofficial act</a>.</p>
<p>The stronger version of Trump’s impeachment clauses argument presumes the president’s absolute immunity for official acts. Here, Trump acknowledges that an impeachment conviction removes that protection – but insists that an acquittal does not. That is why Trump’s brief states, “<a href="https://www.washingtonpost.com/documents/f25cf425-77ad-4524-8101-fdfabc62ecd7.pdf">A former President is subject to criminal process for his unofficial conduct</a>; and he is subject to criminal prosecution for official acts for which he has been impeached and convicted.” Against a background of absolute immunity, Trump’s impeachment clauses argument is not unreasonable.</p>
<p>It all sounds a bit complicated, but the ensuing conclusion is simple: The impeachment clauses debate is a sideshow. The principal action in this appeal is whether presidents have absolute criminal immunity for official acts. </p>
<p><a href="https://www.newsweek.com/donald-trump-indictment-joe-biden-truth-social-1839004">In our present political culture</a>, Trump’s arguments for criminal immunity – and his corollary take on the impeachment clauses – may be seen by some judges and justices as stronger than some critics anticipate.</p><img src="https://counter.theconversation.com/content/220580/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The former president has raised several legal arguments that do not yet have clear answers. A constitutional scholar says they’re questions worth asking.Ofer Raban, Professor of Constitutional Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206432024-01-06T20:43:09Z2024-01-06T20:43:09ZUS Supreme Court decision on Trump-Colorado ballot case ‘monumental’ for democracy itself, not just 2024 presidential election<figure><img src="https://images.theconversation.com/files/568098/original/file-20240106-17-wrjvyv.jpeg?ixlib=rb-1.1.0&rect=83%2C17%2C3910%2C2640&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-stands-on-december-11-2020-in-news-photo/1230073841?adppopup=true">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p><em>Momentous questions for the U.S. Supreme Court and momentous consequences for the country are likely now that the <a href="https://www.supremecourt.gov/orders/courtorders/010524zr2_886b.pdf">court has announced it will decide</a> whether former president and current presidential candidate Donald Trump is eligible to appear on the Colorado ballot.</em> </p>
<p><em>The court’s decision to consider the issue comes in the wake of <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf">Colorado’s highest court ruling</a> that Trump had engaged in insurrection and therefore was barred from appearing on the state’s GOP primary ballot by Section 3 of the 14th Amendment to the U.S. Constitution. <a href="https://www.maine.gov/sos/news/2023/Decision%20in%20Challenge%20to%20Trump%20Presidential%20Primary%20Petitions.pdf">Maine’s secretary of state also barred Trump</a> from the state’s primary ballot, and more than a <a href="https://www.washingtonpost.com/politics/2023/12/28/here-are-key-states-where-trumps-ballot-status-is-being-challenged/">dozen other states are considering similar moves</a>.</em> </p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame election law scholar <a href="https://scholar.google.com/citations?user=PSynZNoAAAAJ&hl=en&oi=ao">Derek Muller</a> about the Supreme Court’s decision to take the case, which will rest on the court’s interpretation of a post Civil War-era amendment aimed at keeping those who “<a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">engaged in insurrection or rebellion</a>” from serving in political office.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A blue sign with white printing that says 'Trump 2024.'" src="https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568099/original/file-20240106-15-znwys7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will Trump be able to stay on the ballot in 2024?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/signs-supporting-republican-presidential-candidate-former-u-news-photo/1692356195?adppopup=true">Scott Olson/Getty Images</a></span>
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<p><strong>On a scale of 1 to 10, how big is this?</strong></p>
<p>In terms of potential impact, it’s a 10. It is excluding a former president from appearing on the ballot for engaging in insurrection. </p>
<p>That’s monumental for several reasons. It’s <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10569">the first major and material use of this provision</a> of the Constitution since the Civil War. It’s the first time it has kept a presidential candidate off the ballot, much less a former one and the apparent front-runner for the Republican Party nomination.</p>
<p>But on the flip side, what are the odds of that actually happening? That’s more speculative. And so the number is probably less than 10. This was an extraordinary major decision from the Colorado Supreme Court. But you have to temper that by saying, well, there’s a chance it gets reversed, and then Trump appears on the ballot and this mostly goes away. </p>
<p><strong>What are the risks here for the court? Legal scholar Michael W. McConnell at Stanford <a href="https://www.washingtonpost.com/politics/2024/01/05/supreme-court-trump-colorado-ballot-insurrection/">said in The Washington Post</a>, “There is no way they can decide the case without having about half the country think they are being partisan hacks.”</strong></p>
<p>This is a binary choice that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters. </p>
<p>I think it’s a reason why there will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to sort of point the finger at one side or another. </p>
<p>That’s much easier said than done. The court decides questions with major political consequences all the time. But to decide the questions in the context of an upcoming election feels different.</p>
<p><strong>The justices <a href="https://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot/">granted only Trump’s appeal</a> to consider the case, not the Colorado Republican Party’s. Is this significant, and if so, how?</strong></p>
<p>The <a href="https://www.supremecourt.gov/DocketPDF/23/23-696/294416/20231227184621636_Colorado-Republican-State-Central-Committee-v.-Anderson-Cert-Petition%20PDFA.pdf">Colorado Republican Party</a> and <a href="https://www.documentcloud.org/documents/24253189-trump-v-anderson-2024-01-03-petition-for-writ-of-certiorari">the Trump campaign</a> were on two different tracks in their appeals. When you grant both cases, you invite two sets of attorneys and parties to participate and add complexity. I think the decision to grant only Trump’s case is a decision to make this as streamlined a process as possible. </p>
<p><strong>Will whatever decision the court makes put to rest the ballot access questions in all the other states?</strong></p>
<p>There are a couple of very narrow grounds the court might rule on. For example, they might say, we’re not ready to hear this case because it’s only a primary, or Colorado so abused its own state procedures as to run afoul of federal constitutional rules. Those would be kind of rulings <a href="https://theconversation.com/trump-barred-from-colorado-ballot-now-what-220273">only applicable to the Colorado case or only applicable in the primaries</a>. </p>
<p>There’s a chance the court does this, but my sense – not to speculate too much – is that’s going to be deeply unsatisfying for the court, knowing that if they delay in this case, another case is likely coming later in the summer where these questions will have to be addressed in August or September. That’s much closer to the general election. Those are months when the court is in recess, and they would have to come back from their summer vacation early. So my sense is that the court will try to resolve these on a comprehensive basis. They’ve scheduled oral argument on Feb. 8, 2024 so they want to move on as quickly as possible to put this to rest.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A legal document in which former President Donald Trump asks the U.S. Supreme Court to review the Colorado Supreme Court's decision." src="https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568103/original/file-20240106-21-g12xmx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A page from the appeal by former President Donald Trump asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/f1e2b09db9de4b658048c40c6627b9cf/photo?Query=Trump%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1401&currentItemNo=5">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<p><strong>You submitted an amicus brief in the Colorado case for neither side. What was it you wanted to tell the court?</strong></p>
<p><a href="https://cdn.theconversation.com/static_files/files/2999/Muller_Amicus_Colorado.pdf?1704560255">I raised two general points</a> and then one specific to Colorado. The two general points are that I think states have the power to judge the <a href="https://www.usa.gov/requirements-for-presidential-candidates">qualifications of presidential candidates</a> and keep them off the ballot. And states have done that over the years to say if you were born in Nicaragua, or you’re 27 years old, we’re going to keep you off the ballot. </p>
<p>But I also say states have no obligation to do that. You can look throughout history, going back to the 1890s, where ineligible candidates’ names have been printed and put on the ballot. And this isn’t a question of whether or not the state wants to do it – they have the flexibility to do it. So I wanted to set those two framing questions up so the court doesn’t veer too much in one direction or the other to say “states have no power” or “of course states have power regardless of what the legislature has asked them to do.” </p>
<p>The point specific to Colorado is I doubted there was jurisdiction in Colorado for the state Supreme Court to hear this case, but the court disagreed with me.</p>
<p><strong>What could happen during the period between now and the court’s decision that could be consequential?</strong></p>
<p>More states are going to consider these challenges as the ballot deadlines approach. And we know that there’s Super Tuesday the first Tuesday of March when a significant number of states hold presidential primaries. So I think there’s a lot of uncertainty in the next six weeks about which states might exclude him. </p>
<p>On top of that is voter uncertainty. Voters are making their decisions and weighing the trade-offs of who to vote for. Right now, this is a cloud hanging over the Trump campaign. It’s not just that he’s been declared ineligible in Colorado and Maine. It’s the question in other states for other voters: Am I wasting my vote, is this actually an ineligible candidate? Should I be voting for somebody else? </p>
<p>That’s not an enviable position for voters to be in – that they might cast their ballots only to find out later that they’re not going to be counted.</p><img src="https://counter.theconversation.com/content/220643/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I filed an amicus brief on my own behalf in support of neither party in the Colorado Supreme Court.</span></em></p>The US Supreme Court faces a case with huge repercussions for the 2024 presidential election – and American democracy. An election law scholar explains why.Derek T. Muller, Professor of Law, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2202732023-12-21T02:07:03Z2023-12-21T02:07:03ZTrump barred from Colorado ballot – now what?<figure><img src="https://images.theconversation.com/files/566998/original/file-20231220-17-avsgja.jpeg?ixlib=rb-1.1.0&rect=35%2C23%2C3958%2C2634&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump at a campaign event in Waterloo, Iowa, on Dec. 19, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-and-2024-presidential-hopeful-donald-news-photo/1860797047?adppopup=true">Kamil Krzaczysnki/AFP via Getty Images</a></span></figcaption></figure><p><em>In the wake of the Colorado Supreme Court ruling that <a href="https://www.cnn.com/2023/12/19/politics/trump-colorado-supreme-court-14th-amendment">bars Donald Trump from the ballot</a> in the state’s primary and general elections, The Conversation U.S. asked <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">Mark A. Graber</a>, regents professor of law at the University of Maryland Carey Law School, what this all means – for Trump, for regular Americans and for the 2024 election.</em></p>
<p><em>The key questions are about <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment to the U.S. Constitution</a>. That provision bars people from holding federal and state offices if they have taken an oath to uphold the Constitution and then violated that oath by participating in an insurrection.</em></p>
<p><em>Graber filed an <a href="https://www.dropbox.com/scl/fi/x4tl8vbdcy6bmqfr6p3jv/002-2023-11-20-Amicus-Brief-Professor-Graber-CSC-Date-Stamped.pdf?rlkey=m1pbl5qtycw1hzue9kt2n75d5&dl=0">amicus brief</a> that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment. Some of Graber’s scholarly works, including a <a href="https://dx.doi.org/10.2139/ssrn.4591133">journal article</a> and a <a href="https://kansaspress.ku.edu/9780700635030/">book</a>, were cited in the court’s decision.</em></p>
<p><em>The court’s ruling has sparked a <a href="https://www.bostonglobe.com/2023/12/20/nation/republicans-angry-trump-disqualified-colorado-ballot/">nationwide outcry</a> – both in support of its conclusions and in opposition to them. And many other states may have to make similar decisions.</em></p>
<p><em>Supporters of the court’s decision say it correctly determined that Trump swore an oath to uphold the Constitution at his inauguration, then participated in an insurrection on Jan. 6, 2021, and therefore is <a href="https://thehill.com/homenews/house/4368931-democratic-lawmakers-voice-support-for-colorado-courts-ruling-on-trump/">not qualified to serve</a> as president. Critics of the decision say <a href="https://www.washingtonpost.com/politics/2023/12/20/trump-republican-rivals-colorado-ballot/">judges are trying to usurp voters’ right</a> to choose the president they want.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing a blue shirt and a hat drops off a ballot in an official box." src="https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566999/original/file-20231220-23-i9pxr6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Colorado Supreme Court said Donald Trump could not appear on the state’s 2024 primary or general election ballot. Here, a voter drops off his ballot in Denver during the 2022 election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voter-places-his-ballot-in-a-drop-off-box-outside-the-la-news-photo/1244617819?adppopup=true">Photo by Michael Ciaglo/Getty Images</a></span>
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<h2>Why are people so interested in this ruling?</h2>
<p>Somebody had to go in the water. I think the last thing anyone wanted was for the first successful disqualification of Trump to be a month before the election. Now, the issue is on the table. It wouldn’t surprise me if other states discover the water isn’t all that bad and disqualify Trump. Then we can get answers before people start voting in the primaries and in the general election. </p>
<h2>From here, what happens procedurally?</h2>
<p>One answer – and I doubt this would happen, but it actually might make sense – is that Trump doesn’t bother appealing. He doesn’t need Colorado delegates to get the Republican nomination. He doesn’t need Colorado electoral votes to win the presidency. And appealing is time-consuming and expensive.</p>
<p>Dating back as far as the <a href="https://www.law.cornell.edu/wex/judiciary_act_of_1789">Judiciary Act of 1789</a>, federal laws have allowed certain types of rulings from states’ highest courts to be appealed directly to the U.S. Supreme Court.</p>
<p>Everybody expects the Supreme Court to get involved. But nobody thinks it is required to. If it were appealed, the court could decline to hear the case, or accept it.</p>
<p>So Trump could appeal. If he didn’t appeal, or if the Supreme Court declined to take the case, then he’s disqualified in Colorado. Perhaps other lawsuits would take place, and he would be on the ballot in some states and not on the ballot in others. The Supreme Court could also say it would consider taking up a future case if a conflict between state court rulings arose.</p>
<h2>What if the Supreme Court does take the case?</h2>
<p>Most people think there are two options for the outcome, but I think there are three.</p>
<p>The simple option is that the Supreme Court could rule that yes, Trump is disqualified under Section 3 of the 14th Amendment. Then he can’t be on the ballot anywhere.</p>
<p>The second option is the Supreme Court says he’s not disqualified. But the court could hand down two different kinds of rulings saying that.</p>
<p>It could reverse the Colorado Supreme Court’s decision on substance, finding that Trump did not engage in insurrection as insurrection is understood by the 14th Amendment. That would mean no further proceedings are permissible – no state can challenge it, and Congress can’t challenge it.</p>
<p>Or the Supreme Court could reverse it on a technicality – maybe Trump is disqualified, but the 14th Amendment’s Section 3 doesn’t apply to a primary election, or Congress should weigh in, or one or another detail that could mean another lawsuit down the line might be successful.</p>
<h2>That’s two options. What’s the third?</h2>
<p>There’s a third major option if you look at the way the framers understood how the 14th Amendment would operate. The <a href="https://memory.loc.gov/ammem/amlaw/lwcg.html">record of their debates</a> shows that they believed it would first be implemented in the states. </p>
<p>Part of the history is people in the 19th century thought differently than we do. Not simply that they came to different conclusions, but they understood the structure of the government quite differently.</p>
<p>Today, we hear people say many laws and standards can’t be established at the state level, that they need to be uniform across the country. But back then, people were less fearful of diversity. So they were willing to let states vary more. If uniformity was needed, or if Congress did not approve of what the states were doing, Congress could pass more general legislation. </p>
<p>So the court could say, “Colorado has disqualified Trump. That’s OK for Colorado. Other states, you get to do what you think best. And Congress, if you don’t like the mish-mosh, pass a law standardizing it.” I think that’s the least likely outcome, but it may be the one most consistent with the history.</p>
<h2>The Colorado Supreme Court says that there doesn’t need to be a criminal conviction of any kind, or a conviction from impeachment, for this provision of the 14th Amendment to apply. Does it matter that Trump has not yet been convicted of any crimes?</h2>
<p>The court is absolutely correct. </p>
<p>There are a number of different ways of understanding this point.</p>
<p>The first is that Section 3 states a qualification to be president, just like <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">being born a United States citizen</a>. So the Colorado Secretary of State would make the same decision if there was evidence that Trump was born Latvian. Being born in Latvia is not a crime. But it’s a disqualification.</p>
<p>The second aspect is that prosecutors charge people with crimes for various reasons. They may have decided to seek prosecution of Trump for other actions. Absence of a conviction doesn’t mean an action didn’t happen.</p>
<p>Or imagine that Trump was still president and the attorney general didn’t want to prosecute because the attorney general is in cahoots with Trump. A private person could still bring the lawsuit.</p>
<p>Right after the Civil War, numerous people were disqualified under this provision, none of whom were convicted of anything.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large, impressive building with columns atop wide granite stairs." src="https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567000/original/file-20231220-21-freci9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Colorado case may well be headed for the U.S. Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/steps-to-the-united-states-supreme-court-washington-royalty-free-image/1364488146?phrase=US+Supreme+Court&adppopup=true">joe daniel price/Getty Images</a></span>
</figcaption>
</figure>
<h2>Why is a state court ruling on a federal constitutional provision or requirement?</h2>
<p>Is capital punishment constitutional? The death penalty trial starts in the state court. It bubbles up until it gets to the state supreme court, then it goes to the federal courts. Same with abortion.</p>
<p>States decide constitutional issues all the time. Indeed, almost all constitutional issues are first decided by state courts.</p>
<h2>What does this mean on a broader scale for the 2024 election?</h2>
<p>We’re not at the end. We just got out of the opening. So the meaning could be almost nothing. The U.S. Supreme Court could reverse the Colorado ruling and say all these lawsuits are wrong. And so we have an interesting academic discussion, but nothing changes.</p>
<p>Or we could have a very long debate about this. And at some point, for example, a number of prominent Republicans could conclude that Trump really is an insurrectionist, and this starts to have serious play in Republican primaries.</p>
<p>We’re still too early to know whether this is a blip or an earthquake, or something in between.</p>
<p>People are scrambling to figure out what they’re going to do. The Colorado Republican Party has just announced they’re <a href="https://www.nbcnews.com/politics/2024-election/colorado-gop-caucus-primary-trump-supreme-court-rcna130591">considering a caucus rather than the primary</a> to avoid needing Trump’s name on a state ballot – at least for the primaries. People are maneuvering.</p>
<h2>How does it feel to be cited in a Colorado Supreme Court decision like this?</h2>
<p>I’m an academic. Favorable citations are 100 on a scale of 100 points. Unfavorable citations are 99. No citations is zero.</p><img src="https://counter.theconversation.com/content/220273/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber filed an amicus brief in the Colorado case that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment.</span></em></p>A historian and legal scholar of a key part of the US Constitution explains what happens now that the Colorado Supreme Court has ruled Trump cannot be on the state’s presidential ballots.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2200162023-12-20T13:28:04Z2023-12-20T13:28:04ZTrump claims Constitution gives him immunity − here’s why judges and the Supreme Court may not agree<figure><img src="https://images.theconversation.com/files/566349/original/file-20231218-19-h1tltf.jpg?ixlib=rb-1.1.0&rect=16%2C4%2C2707%2C1809&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump continues to campaign for president even as he faces multiple criminal indictments.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024Trump/6b19fc93d0634d3694b4adb7a297cb69/photo">AP Photo/Godofredo A. Vásquez</a></span></figcaption></figure><p>Former President Donald Trump has claimed he is <a href="https://www.pbs.org/newshour/politics/judge-pauses-court-deadlines-in-trump-2020-election-case-as-appeal-is-heard-on-presidential-immunity">immune from prosecution</a> – specifically on the federal charges that he tried to <a href="https://theconversation.com/the-most-serious-trump-indictment-yet-a-criminal-law-scholar-explains-the-charges-of-using-dishonesty-fraud-and-deceit-to-cling-to-power-210600">subvert the results of the 2020 presidential election</a>. He says that his actions in connection with the 2020 election were part of his official duties, and he also argues that <a href="https://www.documentcloud.org/documents/24088357-122-trump-reply-re-immunity">because he was not convicted during either of his impeachments</a>, he cannot be tried in a criminal court for his actions.</p>
<p>The trial judge, Tonya Chutkan, <a href="https://www.nytimes.com/2023/12/01/us/politics/trump-chutkan-immunity.html">rejected both of those arguments</a> on Dec. 1, 2023, and <a href="https://www.nytimes.com/2023/12/13/us/politics/trump-immunity-decision-election-case.html">Trump has appealed her ruling</a> to the U.S. Court of Appeals for the District of Columbia Circuit, which <a href="https://www.documentcloud.org/documents/24229331-dc-circuit-oral-arguments?responsive=1&title=1">plans to hear the case on Jan. 9, 2024</a>.</p>
<p>Special counsel Jack Smith, who is prosecuting the case, had <a href="https://www.scotusblog.com/2023/12/special-counsel-asks-justices-to-weigh-in-now-on-presidential-immunity/">asked the Supreme Court to step in</a>, even ahead of the appeals court. He argues that waiting for the appeals process – and an almost certain application afterward to the Supreme Court for review – will delay the trial too long. He says the delay would deprive both Trump of a speedy trial and the American public of a <a href="https://www.scotusblog.com/2023/12/special-counsel-asks-justices-to-weigh-in-now-on-presidential-immunity/">long-awaited resolution of the disputes around the 2020 election</a> – perhaps until after the 2024 presidential election.</p>
<p>The Supreme Court on Dec. 22, 2023 <a href="https://www.nytimes.com/2023/12/22/us/politics/trump-supreme-court-immunity.html">declined to step in</a>, allowing the normal appeals process to move forward. The appeals court’s schedule requires a <a href="https://www.nbcnews.com/politics/donald-trump/court-grants-special-counsels-request-expedite-trumps-immunity-appeal-rcna129615">third round of briefing by both parties</a> – Trump and Smith – to conclude by Jan. 2, <a href="https://www.cadc.uscourts.gov/internet/orders.nsf/279CFE3CFB2A1C7585258A8900788F28/$file/23-3228CCMN.pdf">with oral arguments slated for Jan. 9</a>.</p>
<p>What’s at stake? In broad strokes, Trump’s claim appears to suggest a way he hopes to avoid any potential legal consequences of his actions. The legal issue is more narrow, but with a similar effect: If Trump’s claims are upheld, the prosecution of a former president would still be hypothetically possible, but practically extremely difficult, and only in a very limited set of circumstances.</p>
<p>As a <a href="https://search.asu.edu/profile/3033197">scholar of constitutional law</a>, I know that both questions will have to be resolved, either by the Supreme Court or the appeals court – or both – before Trump’s trial can proceed. Let’s look at each in turn.</p>
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<h2>Official presidential election deception?</h2>
<p>First, Trump argues that the federal charges, including allegations that he defrauded the United States by promoting a conspiracy to block certification of the 2020 election results, are invalid because he was acting in his official capacity as president while taking the actions alleged in the indictment. A <a href="https://www.oyez.org/cases/1981/79-1738">long-standing Supreme Court precedent</a> provides federal officials with immunity from lawsuits for actions they took as part of their official duties.</p>
<p>The current precedent stems from a 1982 Supreme Court decision, in <a href="https://www.oyez.org/cases/1981/79-1738">Nixon v. Fitzgerald</a>, which was a civil lawsuit filed by a former Air Force analyst whom Nixon ordered fired about a year after the analyst testified to Congress about an aspect of defense spending. The ruling in that case was clear: Presidents cannot be sued for actions that fall within what the court called the “outer perimeter” of their official responsibilities. </p>
<p>The court did not define the “outer perimeter” in that case, but some clarity arises from a <a href="https://www.nbcnews.com/politics/donald-trump/federal-appeals-court-denies-trumps-presidential-immunity-defense-e-je-rcna129521">more recent case</a> in which Trump himself was sued for civil damages based on his actions on Jan. 6, 2021. A federal appeals court ruled that Trump’s campaign activities were not official presidential actions, because campaigning is done for the purpose of seeking an office – not as part of the duties of the president.</p>
<p>In several of the lawsuits he filed challenging election results in the wake of the 2020 election, Trump himself said he was acting “<a href="https://www.supremecourt.gov/docketpdf/22/22o155/163234/20201209155327055_no.%2022o155%20original%20motion%20to%20intervene.pdf">in his personal capacity as a candidate</a>,” as distinct from his official capacity as president.</p>
<p>Now, though, Trump claims that whether or not he was acting as a candidate on Jan. 6, his comments on “<a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.74.0_1.pdf#page=34">matters of public concern</a>” fall within the scope of his presidential duties.</p>
<p>His claim is new, legally speaking, because the Nixon v. Fitzgerald ruling involved a civil case, not a criminal one. And the Nixon case did not address whether a president’s official duties include running for reelection.</p>
<p>The remaining legal question boils down to the vague idea of an “outer perimeter” of official presidential responsibilities. There is one Supreme Court ruling that offers a clue here: In <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a> in 1973, the court ruled that the presidential privilege of confidential consultation with advisers had to yield to “the fair administration of criminal justice.” The court upheld a subpoena Nixon had been fighting.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A view of the floor of the U.S. Senate with a graphic showing the final vote total of 57-43, to acquit former President Donald Trump of the impeachment charge, incitement of insurrection." src="https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566350/original/file-20231218-27-259us1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump was acquitted by the U.S. Senate during both of his impeachment trials.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpImpeachment/7a6cb9fad80e47759ed2a500a7481652/photo">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>Is impeachment acquittal relevant?</h2>
<p>Second, Trump claims the Constitution allows a <a href="https://www.documentcloud.org/documents/24088357-122-trump-reply-re-immunity">former president to be prosecuted in criminal court</a> for actions taken while in office only if he was impeached by the House of Representatives, as Trump was twice, and convicted by the Senate, which did not happen in either case.</p>
<p>The pertinent part of the Constitution says: </p>
<blockquote>
<p>“<a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-7">Judgment in Cases of Impeachment</a> shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”</p>
</blockquote>
<p>Most lawyers agree that a sitting president cannot be indicted or prosecuted while still in office. The Supreme Court has never directly addressed this question, but the Office of Legal Counsel – a part of the Justice Department – concluded in <a href="https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution">1973 and 2000</a> that prosecuting a sitting president would be a distraction from nationally important duties and responsibilities, and so should be delayed until after the president leaves office.</p>
<p>Trump cannot make that argument because he is no longer president. Instead, he claims that the language of the Constitution says the framers intended potential prosecution only of <a href="https://s3.documentcloud.org/documents/24076885/mtd-const-grounds.pdf#page=18">people who were both impeached and convicted</a>. </p>
<p>However, the Office of Legal Counsel’s research made that clear too: “Neither the Impeachment Judgment Clause nor any other provision of the Constitution <a href="https://www.justice.gov/d9/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf#page=2">precludes the prosecution of a former President</a> who, while still in office, was impeached by the House of Representatives but acquitted by the Senate.” Another memo from the office came to a similar conclusion, while admitting “<a href="https://www.justice.gov/d9/olc/opinions/2000/08/31/op-olc-v024-p0110_0.pdf">the question is more complicated than it might first appear</a>.” Although these findings do not constitute legal precedent, they nevertheless carry considerable weight in legal circles.</p>
<p>In fact, the office’s analysis found that the language of the Constitution was written specifically to allow prosecutions of former federal officials, whether or not they were convicted during an impeachment trial. So, it seems to me unlikely that an appeals court, or the Supreme Court, would adopt Trump’s interpretation of the clause.</p>
<h2>Beyond this specific case</h2>
<p>The core dispute will likely focus on what the “outer perimeter” of presidential duties are, as well as how expansive presidential powers should be. Though Trump appointed three of the <a href="https://www.cadc.uscourts.gov/internet/home.nsf/Content/Judges">D.C. appeals court’s 11 active judges</a> and three of the Supreme Court’s sitting justices, they have not uniformly supported him in prior cases. In a case of this magnitude, they will know that the public is watching and wondering about the strength of that defining principle of American democracy: No person is above the law.</p>
<p><em>This story has been updated to reflect that the U.S. Supreme Court declined on Dec. 22, 2023 to take the immunity case before it is argued in a federal appeals court.</em></p><img src="https://counter.theconversation.com/content/220016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Constitution makes clear that a president who was impeached and convicted can still be prosecuted − but what about one who is acquitted in two impeachment trials?Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2197632023-12-20T01:26:01Z2023-12-20T01:26:01ZWhy 14th Amendment bars Trump from office: A constitutional law scholar explains principle behind Colorado Supreme Court ruling<figure><img src="https://images.theconversation.com/files/566655/original/file-20231219-17-k5xuyd.jpg?ixlib=rb-1.1.0&rect=25%2C12%2C4277%2C2851&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">On Jan. 6, 2021, then-President Donald Trump exhorted followers to object to the results of the 2020 presidential election.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpCapitolRiot/71cf82caf12d48ce8e14571685ad0441/photo">AP Photo/Evan Vucci</a></span></figcaption></figure><p>In 2024, former President Donald Trump will face some of his greatest challenges: criminal court cases, primary opponents and constitutional challenges to his eligibility to hold the office of president again. The Colorado Supreme Court has pushed that latter piece to the forefront, ruling on Dec. 19, 2023, that <a href="https://www.cnn.com/2023/12/19/politics/trump-colorado-supreme-court-14th-amendment">Trump cannot appear on Colorado’s 2024 presidential ballot</a> because of his involvement in the Jan. 6, 2021, insurrection.</p>
<p>The reason is the 14th Amendment to the Constitution, <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">ratified in 1868</a>, three years after the Civil War ended. Section 3 of that amendment wrote into the Constitution the principle President Abraham Lincoln set out just three months after the first shots were fired in the Civil War. On July 4, 1861, he spoke to Congress, declaring that “<a href="https://millercenter.org/the-presidency/presidential-speeches/july-4-1861-july-4th-message-congress">when ballots have fairly, and constitutionally, decided, there can be no successful appeal back to bullets</a>.”</p>
<p>The text of <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment states</a>, in full:</p>
<blockquote>
<p>“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”</p>
</blockquote>
<p>To me as a <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">scholar of constitutional law</a>, each sentence and sentence fragment captures the commitment made by the nation in the wake of the Civil War to govern by constitutional politics. People seeking political and constitutional changes must play by the rules set out in the Constitution. In a democracy, people cannot substitute force, violence or intimidation for persuasion, coalition building and voting.</p>
<h2>The power of the ballot</h2>
<p>The first words of Section 3 describe various offices that people can only hold if they satisfy the constitutional rules for election or appointment. The Republicans who wrote the amendment repeatedly declared that Section 3 <a href="https://balkin.blogspot.com/2023/11/presidents-as-officers-of-and-under.html">covered all offices established by the Constitution</a>. That included the presidency, a point many participants in framing, ratifying and implementation debates over constitutional disqualification made explicitly, as documented in the <a href="https://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39">records of debate in the 39th Congress</a>, which wrote and passed the amendment.</p>
<p>Senators, representatives and presidential electors are spelled out because <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133">some doubt existed when the amendment was debated in 1866</a> as to whether they were officers of the United States, although they were frequently referred to as such in the course of congressional debates. </p>
<p>No one can hold any of the offices enumerated in Section 3 without the power of the ballot. They can only hold office if they are voted into it – or nominated and confirmed by people who have been voted into office. No office mentioned in the first clause of Section 3 may be achieved by force, violence or intimidation.</p>
<h2>A required oath</h2>
<p>The next words in Section 3 describe the oath “to support [the] Constitution” that <a href="https://constitution.congress.gov/constitution/article-6/">Article 6 of the Constitution</a> requires all office holders in the United States to take. </p>
<p>The people who wrote Section 3 insisted during congressional debates that <a href="https://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39">anyone who took an oath of office</a>, including the president, were subject to Section 3’s rules. The presidential <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-8">oath’s wording</a> <a href="https://www.law.cornell.edu/uscode/text/5/3331">is slightly different</a> from that of other federal officers, but everyone in the federal government swears to uphold the Constitution before being allowed to take office. </p>
<p>These oaths bind officeholders to follow all the rules in the Constitution. The only legitimate government officers are those who hold their offices under the constitutional rules. Lawmakers must follow the Constitution’s rules for making laws. Officeholders can only recognize laws that were made by following the rules – and they must recognize all such laws as legitimate.</p>
<p>This provision of the amendment ensures that their oaths of office obligate officials to govern by voting rather than violence.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit raises his right hand and takes an oath, administered by a man in a judicial robe." src="https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566658/original/file-20231219-25-v4imup.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump takes the presidential oath of office on Jan. 20, 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-j-trump-is-sworn-in-as-the-45th-president-news-photo/632200410">Tom Williams/CQ Roll Call</a></span>
</figcaption>
</figure>
<h2>Defining disqualification</h2>
<p>Section 3 then says people can be disqualified from holding office if they “engaged in insurrection or rebellion.” Legal authorities from the American Revolution to the post-Civil War Reconstruction understood an insurrection to have occurred when two or more people <a href="https://dx.doi.org/10.2139/ssrn.4591133">resisted a federal law by force or violence</a> for a public, or civic, purpose.</p>
<p>Shay’s Rebellion, the Whiskey Insurrection, Burr’s Rebellion, John Brown’s Raid and other events <a href="https://dx.doi.org/10.2139/ssrn.4591133">were insurrections</a>, even when the goal was not overturning the government.</p>
<p>What these events had in common was that people were trying to prevent the enforcement of laws that were consequences of persuasion, coalition building and voting. Or they were trying to create new laws by force, violence and intimidation. </p>
<p>These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials. When applied specifically to the events on Jan. 6, 2021, the amendment declares that those who turn to violence when voting goes against them cannot hold office in a democratic nation.</p>
<h2>A chance at clemency</h2>
<p>The last sentence of Section 3 announces that forgiveness is possible. It says “Congress may by a vote of two-thirds of each House, remove such disability” – the ineligibility of individuals or categories of people to hold office because of having participated in an insurrection or rebellion.</p>
<p>For instance, Congress might remove the restriction on office-holding based on evidence that the insurrectionist was genuinely contrite. It did so for repentant former <a href="https://www.theatlantic.com/magazine/archive/2023/12/james-longstreet-civil-war-confederate-general/675817/">Confederate General James Longstreet</a> .</p>
<p>Or Congress might conclude in retrospect that violence was appropriate, such as against particularly unjust laws. Given their powerful anti-slavery commitments and abolitionist roots, I believe that Republicans in the House and Senate in the late 1850s would almost certainly have allowed people who violently resisted the fugitive slave laws to hold office again. This provision of the amendment says that bullets may substitute for ballots and violence for voting only in very unusual circumstances.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A depiction of the arrest of Jefferson Davis." src="https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=349&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=349&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=349&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=438&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=438&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566661/original/file-20231219-15-c3wtt3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=438&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">After fleeing Union forces, Confederate president Jefferson Davis, at center climbing into the carriage, was arrested on May 10, 1865.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/jefferson-davis-arrested-taken-to-fortress-monroe-fortress-news-photo/143853354">Buyenlarge/Getty Images</a></span>
</figcaption>
</figure>
<h2>A clear conclusion</h2>
<p>Taken as a whole, the structure of Section 3 leads to the conclusion that Donald Trump is one of those past or present government officials who by violating his oath of allegiance to the constitutional rules has forfeited his right to present and future office.</p>
<p><a href="https://www.cbsnews.com/news/14th-amendment-cases-challenging-trump-eligibility-courts-unknown/">Trump’s supporters say</a> the president is <a href="https://www.washingtonpost.com/politics/2023/10/27/trump-14th-amendment-colorado-minnesota/">neither an “officer under the United States” nor an “officer of the United States”</a> as specified in Section 3. Therefore, they say, he is exempt from its provisions.</p>
<p>But in fact, both common sense and history demonstrate that Trump was an officer, an officer of the United States and an officer under the United States for constitutional purposes. Most people, even lawyers and constitutional scholars like me, do not distinguish between those specific phrases in ordinary discourse. The people who framed and ratified Section 3 saw no distinction. Exhaustive research by Trump supporters has yet to produce a single assertion to the contrary that was made in the immediate aftermath of the Civil War. Yet <a href="https://ssrn.com/abstract=4440157">scholars John Vlahoplus</a> and <a href="https://balkin.blogspot.com/2023/12/additional-evidence-on-section-three.html">Gerard Magliocca</a> are daily producing newspaper and other reports asserting that presidents are covered by Section 3.</p>
<p>Significant numbers of Republicans and Democrats in the House and Senate agreed that <a href="https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump">Donald Trump violated his oath of office</a> immediately before, during and immediately after <a href="https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/15/967878039/7-gop-senators-voted-to-convict-trump-only-1-faces-voters-next-year">the events of Jan. 6, 2021</a>. Most Republican senators who voted against his conviction did so on the grounds that they <a href="https://rollcall.com/2021/02/13/trump-acquitted/">did not have the power to convict</a> a president who was no longer in office. Most of them did not dispute that <a href="https://thehill.com/homenews/senate/536408-how-mcconnell-derailed-trumps-impeachment-trial-before-it-started/">Trump participated in an insurrection</a>. A judge in Colorado also found that Trump “<a href="https://www.npr.org/2023/11/18/1213961050/colorado-judge-finds-trump-engaged-in-insurrection-but-keeps-him-on-ballot">engaged in insurrection</a>,” which was the basis for the state’s Supreme Court ruling barring him from the ballot.</p>
<p>Constitutional democracy is rule by law. Those who have demonstrated their rejection of rule by law may not apply, no matter their popularity. Jefferson Davis participated in an insurrection against the United States in 1861. He was not eligible to become president of the U.S. four years later, or to hold any other state or federal office ever again. If Davis was barred from office, then the conclusion must be that Trump is too – as a man who participated in an insurrection against the United States in 2021.</p><img src="https://counter.theconversation.com/content/219763/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Colorado’s Supreme Court has removed Donald Trump from the state’s 2024 presidential ballot. A scholar of constitutional law explains why.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2146282023-11-29T13:38:28Z2023-11-29T13:38:28ZLGTBQIA+ sanctuary declarations help cities take a stand to defend rights – but may not have much actual legal impact<figure><img src="https://images.theconversation.com/files/560848/original/file-20231121-25-54tmre.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Minnesotans hold a rally at the state capitol in St. Paul to support trans kids in March 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/st-paul-minnesota-march-6-2022-because-the-attacks-against-news-photo/1385207884?adppopup=true">Michael Siluk/UCG/Universal Images Group via Getty Images</a></span></figcaption></figure><p>Several <a href="https://thenationaldesk.com/news/americas-news-now/naacp-joins-other-civil-rights-groups-in-issuing-travel-advisory-for-florida-national-association-for-the-advancement-of-colored-people-diversity-equity-and-inclusion-african-american-studies-history-people-of-color-lgbtq-rights-civil-rights-policy-guns">cities and towns</a>, mostly in the American Midwest and South, are responding to a surge of proposed and approved legislation that restricts gay and transgender people’s rights by declaring they are “sanctuaries” for people who identify as LGBTQIA+. </p>
<p>States like Alabama, Texas, Florida, North Dakota and Montana have <a href="https://www.aclu.org/legislative-attacks-on-lgbtq-rights">passed 84 laws</a> <a href="https://apnews.com/article/lgbtq-laws-states-gender-affirming-zephyr-fc2528326823c8232cb0aaa7ece0beab">in 2023 alone</a> that restrict LGBTQIA+ rights, primarily targeting transgender kids. </p>
<p>Some of these laws require teachers to <a href="https://www.nbcnews.com/nbc-out/out-politics-and-policy/north-dakota-advances-record-setting-10-anti-lgbtq-bills-one-day-advoc-rcna78311">call trans students by the name and pronoun</a> they were assigned at birth, for example, and <a href="https://apnews.com/article/desantis-florida-dont-say-gay-ban-684ed25a303f83208a89c556543183cb">prohibit any students</a> from discussing sexual orientation or gender identity. </p>
<p>In September 2023, the small town of Lake Worth Beach, Florida, was the latest to say that it was “a safe place, a sanctuary, a <a href="https://www.usatoday.com/story/news/nation/2023/09/07/lgbtq-sanctuary-city-florida/70789322007/">welcoming and supportive city</a> for LGBTQIA+ individuals and their families to live in peace and comfort.” </p>
<p>At least 15 states and cities have dubbed themselves <a href="https://www.lgbtmap.org/equality-maps/healthcare/trans_shield_laws">LGBTQIA+ sanctuaries</a> over the last several years.</p>
<p>Sanctuaries are generally considered local refuges, where people who are afraid of persecution or discrimination have legal immunity from particular government policies or laws. </p>
<p>As a <a href="http://jfinn.faculty.wesleyan.edu/">scholar of constitutional law</a> and a student of sanctuary movements, I think that sanctuary declarations of all kinds raise important questions of constitutional law. </p>
<p>The most difficult is the question of whether and when these declarations violate the U.S. Constitution by placing state or local law above federal law.</p>
<p>The short answer is that it depends on what these declarations actually promise. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People hold signs that say 'Love is love,' and 'say gay loud!' Some of the people wear large yellow wigs." src="https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest Florida’s anti-LGBTQIA laws during a pride parade in Wilton Manors in June 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-protesting-against-florida-gov-ron-desantis-and-news-photo/1499333323?adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Sanctuaries’ history in the US</h2>
<p>Sanctuaries are a long-standing part of the United States’ constitutional history. </p>
<p><a href="https://www.lirs.org/news/what-are-sanctuary-cities-and-why-do-they-exist-lirs/">In the 1980s,</a> for example, Los Angeles, Chicago and Boston, among other places, said they would <a href="https://cis.org/Map-Sanctuary-Cities-Counties-and-States">not cooperate with federal immigration</a> officials trying to deport Central American migrants. These cities’ representatives said the migrants were eligible for asylum and had fear of returning to their homelands because of persecution – but federal judges still did not give them the right to stay in the U.S. </p>
<p>More recent examples include the proliferation of <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">Second Amendment sanctuaries</a> <a href="https://www.bradyunited.org/act/second-amendment-sanctuaries">in local towns and counties</a> in 42 states, which say they will not enforce a variety of federal gun laws. </p>
<p>Now, Tallahassee, Florida, is among the places that is considering <a href="https://gray-wctv-prod.cdn.arcpublishing.com/video/2023/07/14/tallahassee-residents-push-mayor-make-capital-sanctuary-city-lgbtq/">declaring itself a LGBTQIA+ sanctuary</a>. Other places – <a href="https://www.vice.com/en/article/g5qk7w/austin-texas-trans-kids-sanctuary-city">including Austin, Texas</a> and <a href="https://www.latimes.com/world-nation/story/2023-05-12/kansas-city-declares-lgbtq-sanctuary-city">Kansas City, Missouri</a> – have also made themselves LGBTQIA+ sanctuaries over the last few years.</p>
<p>Most of the sanctuaries focus on the rights and protection of trans kids and their families, in particular.</p>
<p>In some places, like Austin, the aim is to create a “safe place, a sanctuary, for <a href="https://www.kxan.com/news/local/austin/leaders-to-declare-austin-a-safe-and-inclusive-city-for-transgender-families/">transgender children and their families.”</a> In Kansas City, the intent is to make the city “a sanctuary for people seeking or <a href="https://apnews.com/article/sanctuary-city-lgbtq-kansas-city-resolution-bccdd5c33818bf9c1270ef2af63e393e">providing gender-affirming care.”</a> </p>
<h2>Are they legal?</h2>
<p>Sanctuary declarations raise important and difficult questions of constitutional law, especially when they claim immunity from federal laws or the U.S. Constitution. That’s because the Constitution <a href="https://constitution.congress.gov/constitution/article-6/">contains Article 6</a>, commonly known as the supremacy clause, which says that the Constitution and federal laws trump any state or local law. </p>
<p>The supremacy of the Constitution to state and local laws is a key part of how the U.S. government works. It means that state and local governments must act within the confines of the Constitution, even when state or local lawmakers disagree with federal law. </p>
<p>So, does the Constitution allow <a href="https://www.hrc.org/press-releases/roundup-of-anti-lgbtq-legislation-advancing-in-states-across-the-country">places to say that they will not follow</a> discriminatory laws, such as those that prevent trans students or faculty from use of the restrooms that match their gender identity?</p>
<p>The answer often depends on a sanctuary declaration’s precise wording and meaning.</p>
<p>Some sanctuary declarations, like the <a href="https://thehill.com/homenews/lgbtq/4192088-this-town-is-floridas-first-lgbtq-sanctuary-city/">Lake Worth Beach resolution</a>, are simply rhetorical statements of support or opposition to a particular cause or policy. They have little or no legal consequences. </p>
<p>Others, like some <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">Second Amendment resolutions</a>, announce that local officials, often sheriffs or other law enforcement personnel, will not enforce or comply with laws restricting guns that they regard as unconstitutional. </p>
<p>In these sorts of cases, the proclaimed sanctuaries directly challenge what the Constitution says, specifically that the Constitution and federal laws are <a href="https://constitution.congress.gov/constitution/article-6/">“the supreme Law of the Land”</a>. State laws or laws passed by lower levels of government cannot overrule them.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Children wear rainbows on their shirts and dance in front of people also wearing rainbows and waving rainbow flags." src="https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People dance during a drag story time in Austin, Texas, in June 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-dance-during-a-drag-time-story-hour-at-the-waterloo-news-photo/1497480212?adppopup=true">Brandon Bell/Getty Images</a></span>
</figcaption>
</figure>
<h2>Devil is in the details</h2>
<p>It is important to note, however, that not all sanctuary declarations violate Article 6. </p>
<p>When it comes to whether sanctuaries declared by states, cities or small towns are legal, the devil is in the details – as with most things concerning the Constitution. </p>
<p>A sanctuary resolution that only says that local officials disagree about what the Constitution means or requires, without pledging to break federal law, is simply <a href="https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does">freedom of expression</a>. </p>
<p>Consequently, a claim of sanctuary for LGBTQIA+ people that simply declares a city or a town a safe and welcoming space, without calling for anything else or any kind of direct violation of federal law, is constitutionally protected. This is what the Lake Worth City <a href="https://www.wptv.com/news/region-c-palm-beach-county/lake-worth/city-of-lake-worth-beach-now-lgbtq-sanctuary-city">sanctuary declaration does</a>. </p>
<p>A more complex case arises when sanctuary spaces claim immunity not from federal law, but rather from state or local laws that impede a certain group of people’s rights. These kinds of sanctuary declarations do not ordinarily challenge the authority of Article 6 or the Constitution, in general, because the sanctuary claim is made against state laws, not federal law or the Constitution.</p>
<p>Indeed, in many such instances, these sanctuaries seek to protect people’s federal civil liberties and rights against discriminatory state laws. This is what the <a href="https://www.palmbeachpost.com/story/news/local/lakeworth/2023/09/07/what-is-an-lgbtq-sanctuary-city-lake-worth-beach-just-became-one/70774974007/">Lake Worth Beach resolution</a> and other <a href="https://www.nbcnews.com/nbc-out/out-politics-and-policy/kansas-city-declares-lgbtq-sanctuary-city-rcna84126">LGBTQIA+ resolutions do</a>. </p>
<p>These sanctuaries actually reinforce the Constitution’s authority by insisting upon the power of people’s basic, constitutional principles and rights over discriminatory state laws.</p>
<p>Sanctuaries that promise a safe space for people who identify as part of the LGBTQIA+ community do not undermine federal constitutional law. </p>
<p>Instead, they seek to make good on the Constitution’s commitments to equality and human dignity against discriminatory policies. Unlike some sanctuary resolutions, most LGBTQIA+ sanctuaries do not threaten the Constitution – they celebrate it by insisting upon the supremacy of basic constitutional rights and principles without violating Article 6.</p><img src="https://counter.theconversation.com/content/214628/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Finn is Professor Emeritus of Government at Wesleyan University.</span></em></p>The question of whether local declarations offering sanctuary for LGBTQIA+ people place local law above federal law depends on what the statements actually promise.John E. Finn, Professor Emeritus of Government, Wesleyan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2177602023-11-27T13:41:34Z2023-11-27T13:41:34ZSupreme Court to consider giving First Amendment protections to social media posts<figure><img src="https://images.theconversation.com/files/560784/original/file-20231121-4426-i5zrwh.jpg?ixlib=rb-1.1.0&rect=0%2C22%2C3706%2C3084&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Citizens have sometimes been surprised to find public officials blocking people from viewing their social media feeds.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/businessman-standing-in-front-of-a-big-smart-royalty-free-illustration/1025098142">alashi/DigitalVision Vectors via Getty Images</a></span></figcaption></figure><p>The First Amendment does not protect messages posted on social media platforms. </p>
<p>The companies that own the platforms can – and do – remove, promote or limit the distribution of any posts <a href="https://www.freedomforum.org/free-speech-on-social-media/">according to corporate policies</a>. But all that might soon change.</p>
<p>The Supreme Court has agreed to <a href="https://www.nytimes.com/2023/10/31/opinion/social-media-supreme-court-democracy.html">hear five cases</a> during this current term, which ends in June 2024, that collectively give the court the opportunity to reexamine the nature of content moderation – the rules governing discussions on social media platforms such as Facebook and X, formerly known as Twitter – and the constitutional limitations on the government to affect speech on the platforms.</p>
<p>Content moderation, whether done manually by company employees or automatically by a platform’s software and algorithms, affects what viewers can see on a digital media page. Messages that are promoted garner greater viewership and greater interaction; those that are deprioritized or removed will obviously receive less attention. Content moderation policies reflect decisions by digital platforms about the relative value of posted messages.</p>
<p>As an attorney, <a href="https://lynngreenky.com/">professor</a> and author of a book about the <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">boundaries of the First Amendment</a>, I believe that the constitutional challenges presented by these cases will give the court the occasion to advise government, corporations and users of interactive technologies what their rights and responsibilities are as communications technologies continue to evolve.</p>
<h2>Public forums</h2>
<p>In late October 2023, the Supreme Court heard oral arguments on two related cases in which both sets of plaintiffs argued that elected officials who use their social media accounts either exclusively or partially to promote their politics and policies <a href="https://www.nytimes.com/2023/04/24/us/elected-officials-social-media-supreme-court.html">cannot constitutionally block constituents</a> from posting comments on the officials’ pages.</p>
<p>In one of those cases, <a href="https://www.oyez.org/cases/2023/22-324">O’Connor-Radcliff v. Garnier</a>, two school board members from the Poway Unified School District in California blocked a set of parents – who frequently posted repetitive and critical comments on the board members’ Facebook and Twitter accounts – from viewing the board members’ accounts. </p>
<p>In the other case heard in October, <a href="https://www.oyez.org/cases/2023/22-611">Lindke v. Freed</a>, the city manager of Port Huron, Michigan, apparently angered by critical comments about a posted picture, blocked a constituent from viewing or posting on the manager’s Facebook page. </p>
<p>Courts have long held that public spaces, like parks and sidewalks, are public forums, which must <a href="https://www.oyez.org/cases/1900-1940/307us496">remain open to free and robust conversation and debate</a>, subject only to neutral rules <a href="https://firstamendment.mtsu.edu/article/time-place-and-manner-restrictions/">unrelated to the content of the speech expressed</a>. The silenced constituents in the current cases insisted that in a world where a lot of public discussion is conducted in interactive social media, digital spaces used by government representatives for <a href="https://www.nytimes.com/2023/04/24/us/elected-officials-social-media-supreme-court.html">communicating with their constituents</a> are also public forums and should be subject to the same First Amendment rules as their physical counterparts.</p>
<p>If the Supreme Court rules that public forums can be both physical and virtual, government officials will not be able to arbitrarily block users from viewing and responding to their content or remove constituent comments with which they disagree. On the other hand, if the Supreme Court rejects the plaintiffs’ argument, the only recourse for frustrated constituents will be to create competing social media spaces where they can criticize and argue at will.</p>
<h2>Content moderation as editorial choices</h2>
<p>Two other cases – <a href="https://www.oyez.org/cases/2023/22-555">NetChoice LLC v. Paxton</a> and <a href="https://www.oyez.org/cases/2023/22-277">Moody v. NetChoice LLC</a> – also relate to the question of how the government should regulate online discussions. <a href="https://perma.cc/YHK2-WVWS">Florida</a> and <a href="https://perma.cc/B2WU-M3CK">Texas</a> have both passed laws that modify the internal policies and algorithms of large social media platforms by regulating how the platforms can promote, demote or remove posts.</p>
<p>NetChoice, a tech industry trade group representing a <a href="https://netchoice.org/about/#association-members">wide range of social media platforms</a> and online businesses, including Meta, Amazon, Airbnb and TikTok, contends that the platforms are not public forums. The group says that the Florida and Texas legislation unconstitutionally restricts the social media companies’ First Amendment right to make their own <a href="https://www.oyez.org/cases/1973/73-797">editorial choices</a> about what appears on their sites.</p>
<p>In addition, NetChoice alleges that by limiting Facebook’s or X’s ability to rank, repress or even remove speech – whether manually or with algorithms – the Texas and Florida laws amount to government requirements that the <a href="https://www.oyez.org/cases/1994/94-749">platforms host speech they didn’t want to</a>, which is also unconstitutional. </p>
<p>NetChoice is asking the Supreme Court to rule the laws unconstitutional so that the platforms remain free to make their own independent choices regarding when, how and whether posts will remain available for view and comment.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform stands at a lectern looking out at a group of people sitting in chairs." src="https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 2021, U.S. Surgeon General Vivek Murthy declared misinformation on social media, especially about COVID-19 and vaccines, to be a public health threat.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/surgeon-general-vivek-murthy-and-white-house-press-news-photo/1328901388">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Censorship</h2>
<p>In an effort to reduce harmful speech that proliferates across the internet – speech that supports criminal and terrorist activity as well as misinformation and disinformation – the federal government has engaged in wide-ranging discussions with internet companies about their <a href="https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html">content moderation policies</a>.</p>
<p>To that end, the Biden administration has regularly advised – <a href="https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html">some say strong-armed</a> – social media platforms to deprioritize or remove posts the government had flagged as misleading, false or harmful. Some of the posts <a href="https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html">related to misinformation</a> about COVID-19 vaccines or promoted human trafficking. On several occasions, the officials would suggest that platform companies ban a user who posted the material from making further posts. Sometimes, the corporate representatives themselves would ask the government what to do with a particular post.</p>
<p>While the public might be generally aware that content moderation policies exist, people are not always aware of how those policies affect the information to which they are exposed. Specifically, audiences have no way to measure how content moderation policies affect the marketplace of ideas or influence debate and discussion about public issues.</p>
<p>In <a href="https://www.scotusblog.com/case-files/cases/missouri-v-biden/">Missouri v. Biden</a>, the plaintiffs argue that government efforts to persuade social media platforms to publish or remove posts were so relentless and invasive that the moderation policies no longer reflected the companies’ own editorial choices. Rather, they argue, the policies were in reality government directives that effectively silenced – <a href="https://www.oyez.org/cases/1970/1873">and unconstitutionally censored</a> – speakers with whom the government disagreed. </p>
<p>The court’s decision in this case could have wide-ranging effects on the manner and methods of government efforts to influence the information that guides the public’s debates and decisions.</p><img src="https://counter.theconversation.com/content/217760/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court will hear five cases this term that will examine the nature of online discussion spaces run by social media platforms.Lynn Greenky, Professor Emeritus of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2162042023-10-23T18:59:36Z2023-10-23T18:59:36ZGOP’s House paralysis is a crisis in a time of crises<figure><img src="https://images.theconversation.com/files/555378/original/file-20231023-25-n0skbs.jpeg?ixlib=rb-1.1.0&rect=19%2C0%2C4341%2C2903&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's trouble under the U.S. Capitol dome. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/dark-government-royalty-free-image/1181743541?phrase=US+house+of+representatives&adppopup=true"> iStock / Getty Images Plus</a></span></figcaption></figure><p><a href="https://www.npr.org/2023/10/23/1207933406/the-house-is-without-a-speaker-nearly-3-weeks-after-kevin-mccarthy-was-ousted">House Republicans fired one leader</a>, Kevin McCarthy, and have spent almost three weeks trying unsuccessfully to choose another to succeed him as speaker of the House. That’s left the U.S. House of Representatives <a href="https://www.cnn.com/2023/10/21/politics/house-speaker-race-candidates/index.html">unable to do its work</a>, paralyzing the entire legislative branch of government, because the Senate can’t pass legislation without a functioning House. </p>
<p>Is this a “constitutional crisis?” Or something less significant?</p>
<p>The speaker of the House of Representatives is <a href="https://theconversation.com/what-does-the-speaker-of-the-house-do-heres-what-kevin-mccarthys-successor-will-have-for-a-job-94884">a powerful position with an outsized role in lawmaking</a>. According to the rules of the House, the speaker is “<a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm">the presiding officer of the House and is charged</a> <a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm">with numerous duties and responsibilities by law and by the House rules</a>.” </p>
<p>The speaker calls the House to order, refers bills to committees, appoints committee members, rules on points of order and recognizes members on the floor. These duties and responsibilities keep the House engaged in considering and passing bills. </p>
<p>In short, the speaker is critical to the administration of House business. Under the <a href="https://www.senate.gov/about/officers-staff/president-pro-tempore/presidential-succession-act.htm">Presidential Succession Act</a>, passed to supplement Article 2 of the Constitution, the speaker also stands <a href="https://www.usa.gov/presidential-succession">second</a> in line to the presidency, after the vice president, in the event of the president’s incapacity.</p>
<p>For now, the House is presided over by a temporary speaker, U.S. Rep. Patrick McHenry, a Republican from North Carolina, but scholars and experts are <a href="https://www.nytimes.com/2023/10/04/us/politics/patrick-mchenry-interim-speaker.html">divided about whether the House rules</a> allow the person in that role to fulfill all the critical duties of the speakership. Because the situation is unprecedented and because the rules are ambiguous, <a href="https://www.politico.com/live-updates/2023/10/19/congress/jordans-new-plan-00122465">McHenry appears reluctant to exercise</a> anything other than the minimal powers necessary to elect a new speaker.</p>
<p>Thus the House remains in limbo, with action needed as <a href="https://www.cnbc.com/2023/09/30/government-shutdown-live-updates-congress-faces-funding-deadline.html">budget deadlines loom</a> and <a href="https://www.latimes.com/world-nation/story/2023-10-22/israel-strikes-gaza-syria-and-west-bank-as-war-against-hamas-threatens-to-ignite-other-fronts">a war between Israel and Hamas threatens to spread</a> to other fronts. <a href="https://www.researchgate.net/profile/Stefanie-Lindquist-2">As a scholar of both constitutional law and politics</a>, I believe the U.S. could be viewed as in constitutional crisis – a crisis that, if it does not end, could provoke larger crises ahead.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An empty leather chair behind a lectern and in front of an American flag." src="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The chair for the speaker of the House remains empty at the U.S. Capitol in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-chair-for-the-speaker-of-the-house-remains-empty-as-news-photo/1746583947?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>What is a “constitutional crisis”?</h2>
<p>The term “constitutional crisis” is largely undefined, although <a href="https://www.vox.com/2019/5/16/18617661/donald-trump-congress-constitutional-crisis">scholars generally agree on a few</a> of its characteristics. </p>
<p>One common factor in most historical events described as constitutional crises is that constitutionally mandated processes for resolving conflict break down or have no ready answers. Typically, constitutional crises emerge when the legislature and the president find themselves in conflict over the legality or wisdom of a particular action or policy. </p>
<p>When the legislature and the president reach such an impasse, one or the other of the branches could exercise force to achieve its preferred outcome. </p>
<p>This applies not only to the U.S. but other countries as well. In the case of Russian President Boris Yeltsin’s confrontation with the Russian Parliament <a href="https://nsarchive.gwu.edu/briefing-book/russia-programs/2018-10-04/yeltsin-shelled-russian-parliament-25-years-ago-us-praised-superb-handling">over the power of the presidency</a> in 1993, for example, Yeltsin deployed the Russian military to attack the Parliament and arrest its members. </p>
<p>In the U.S. in 1832 and 1833, conflict between the federal and state governments led President Andrew Jackson to threaten military force to ensure that federal law would be followed in South Carolina during the so-called “<a href="https://www.britannica.com/topic/nullification-crisis">nullification crisis</a>.” In that crisis, South Carolina claimed that a state could unilaterally block a federal law imposing tariffs on imports. Believing that South Carolina’s actions threatened the union and the constitutional order, Jackson proposed to send federal troops to the state to collect the tariffs. This threat of force ultimately led to South Carolina’s capitulation. </p>
<p>Clearly, the Republican standoff in Congress does not rise to the level of a crisis that might involve military force. Yet to the extent that a constitutional crisis involves the paralysis of government machinery without a readily available solution under the Constitution, the current situation in the House could qualify. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white haired man in a gray suit and bow tie sits and listens." src="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=446&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=446&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=446&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=560&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=560&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=560&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Speaker Pro Tempore Patrick McHenry listens as the House of Representatives votes for a third time on whether to elevate Rep. Jim Jordan to Speaker of the House.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/speaker-pro-tempore-rep-patrick-mchenry-listens-as-the-news-photo/1746641345?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>Paralyzed Congress</h2>
<p>Because the speaker is a constitutionally mandated office whose occupant is second in line for the presidency, the role is part of the U.S. constitutional machinery. The Constitution clearly contemplates that a speaker will lead the House, although it does not define their duties, which are determined by the House’s own rules. Those rules have evolved over time to elevate the speaker’s role as central to the lawmaking functions of Congress. And without a speaker, it is not clear that Congress can fulfill its constitutional functions. At the same time, no constitutional remedy exists to solve the current impasse.</p>
<p><a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/">To enact legislation</a>, both chambers in Congress must agree on statutory language and submit the bill to the president for his approval. </p>
<p>Without the House, however, Congress will be unable to fund the federal government, which requires yearly budgetary authorization from Congress for its funding. As the nation’s largest employer, the federal government’s failure to pay its employees’ wages will cause financial disruption to millions, even if retroactive <a href="https://crsreports.congress.gov/product/pdf/IN/IN12251">pay is available afterward</a>. </p>
<p>Critical regulatory agencies that keep water clean, air breathable, roads and bridges safe and the country’s financial system operating fairly and effectively could be stalled in meeting their legal duties to the nation. </p>
<p>Other pressing national concerns, such as the <a href="https://www.washingtonpost.com/politics/2023/10/22/house-speaker-candidates-running/">opioid crisis</a>, will continue without federal legislation to address them. Efforts to support Ukraine and Israel in their battles against Russia and Hamas will be stymied. </p>
<p>A <a href="https://www.cnn.com/2023/10/21/politics/house-speaker-race-candidates/index.html">paralyzed federal government paralyzes the nation</a>, with potentially dire national and global consequences to the economy, the environment and U.S. foreign policy. The absence of a speaker – a single individual but the linchpin in Congress – could thus produce a dangerous crisis in our constitutional democracy. </p>
<p>The longer this impasse continues, the greater the threat to the constitutional order.</p><img src="https://counter.theconversation.com/content/216204/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The absence of a speaker of the House − a single individual but the linchpin in Congress − could produce a dangerous crisis in America’s constitutional democracy.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2139712023-10-03T12:34:09Z2023-10-03T12:34:09ZReagan wouldn’t recognize Trump-style ‘conservatism’ – a look at how the GOP has changed<figure><img src="https://images.theconversation.com/files/550741/original/file-20230927-19-66bw79.jpeg?ixlib=rb-1.1.0&rect=32%2C8%2C5459%2C3648&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mitt Romney, left, represents an old-fashioned GOP conservatism. Donald Trump, right, doesn't − and Romney is leaving politics.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-elect-donald-trump-gives-a-thumbs-up-as-mitt-news-photo/624809914?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p>When Mitt Romney announced his intended retirement from the U.S. Senate on Sept. 13, 2023, <a href="https://www.theatlantic.com/magazine/archive/2023/11/mitt-romney-retiring-senate-trump-mcconnell/675306/">the Atlantic</a> published an excerpt from his upcoming biography, in which the 2012 Republican presidential nominee told author McKay Coppins, “A very large portion of my party really doesn’t believe in the Constitution.” </p>
<p>This claim would have been startling 15 years ago. For decades, the Republican Party has been the party of conservatism and a champion for the Constitution.</p>
<p>Romney is clear that Donald Trump, who leads what he calls a <a href="https://www.youtube.com/watch?v=BujDsieHkZE">“populist” and “demagogic” portion of the party</a>, is to blame. And Romney is not the only concerned Republican. </p>
<p>Former Vice President Mike Pence, now running for the GOP presidential nomination, <a href="https://www.npr.org/2023/09/06/1197887694/mike-pence-donald-trump-populism-conservatism-free-market-republican-party">recently asked a crowd</a> at a campaign event, “Will we be the party of conservatism, or will we follow the siren song of populism unmoored to conservative principles?” </p>
<p>What are the conservative principles Romney and Pence spoke about? And what has happened to them since Trump’s rise?</p>
<p>As a political scientist, I spent the past five years researching <a href="https://doi.org/10.1111/ssqu.12664">ideological identity</a> and <a href="https://doi.org/10.1177/1532673X221112395">Trump’s effect on conservatism</a> and <a href="https://www.cambridge.org/core/journals/perspectives-on-politics/article/abs/adversaries-or-allies-donald-trumps-republican-support-in-congress/1FA48BEAE419AD8348B3A2BB5A93CA5E">on the Republican Party</a>. </p>
<p>Defining “conservatism” is complicated. It has taken many forms over the course of U.S. history. It <a href="https://global.oup.com/academic/product/the-reactionary-mind-9780190692001?cc=us&lang=en&">reinvents itself over time</a>. But a main tenet was summed up by President Ronald Reagan in his <a href="https://www.reaganfoundation.org/ronald-reagan/reagan-quotes-speeches/farewell-address-to-the-nation-1/">1989 farewell address to the nation</a>: “There’s a clear cause and effect here that is as neat and predictable as a law of physics: As government expands, liberty contracts.”</p>
<p>I focus here on features of what’s called “principled conservatism,” the cohesive belief system that emphasizes liberty and the status quo. </p>
<p>Here is a short inventory of these ideals and how they were violated in recent years. This is not an exhaustive list – but it captures much of Reagan’s style of conservatism, which has been the <a href="https://www.washingtonpost.com/elections/2023/09/26/reagan-gop-presidential-candidates/">touchstone for most Republican presidential candidates until recently</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man dressed in a blue suit, white shirt and red tie posing in front of three American flags." src="https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550743/original/file-20230927-17-tqnr4e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Vice President Mike Pence, now a GOP presidential candidate, has asked, ‘Will we be the party of conservatism, or will we follow the siren song of populism?’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidate-former-vice-president-news-photo/1683396110?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<h2>The Constitution and limited government protect liberty</h2>
<p>Outspoken conservatives <a href="https://www.nationalreview.com/2019/11/ronald-reagan-a-time-for-choosing-speech-defining-statement-modern-conservatism/">often emphasize the importance of the Constitution</a>, which established laws to protect the liberty of citizens. </p>
<p>First, the Constitution laid the groundwork for federalism, a system where <a href="https://theconversation.com/georgias-indictment-of-trump-is-a-confirmation-of-states-rights-a-favorite-cause-of-republicans-since-reagan-210610">local governments hold some level of power</a> to ensure the national government does not have absolute control. This is where the <a href="https://theconversation.com/georgias-indictment-of-trump-is-a-confirmation-of-states-rights-a-favorite-cause-of-republicans-since-reagan-210610">conservative phrase “states’ rights”</a> comes from. </p>
<p>Second, the Constitution <a href="https://www.law.cornell.edu/wex/separation_of_powers_0">established checks and balances</a> between the three branches of government to prevent any one of them from abusing power. </p>
<p>These safeguards against tyranny are the beating heart of conservative thought.</p>
<p>But when Trump, <a href="https://projects.propublica.org/represent/members/trump-texas-amicus-house-members">backed by 126 Republican legislators</a> in Congress, tried to overturn election results of key states in 2020, it <a href="https://www.cnn.com/2020/12/10/politics/conservatives-states-rights/index.html">was seen as a violation of states’ rights</a> by conservative lawyers and a handful of Republican legislators. When only 17 Republicans <a href="https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump">voted to impeach</a> <a href="https://rollcall.com/2021/02/13/trump-acquitted/">or convict Trump</a> for his role in the Jan. 6, 2021, insurrection, it gave the appearance that the abuse of power can go unchecked at the federal level. </p>
<h2>Government intervention should be restrained</h2>
<p>Since principled conservatism is averse to an overly active, centralized government, it typically opposes federal intervention in <a href="https://www.youtube.com/watch?v=pDaFwokiFF0">business, increased spending, higher taxes, public programs</a> and <a href="https://www.heritage.org/agriculture/commentary/it-not-conservative-support-farm-subsidies-heres-where-conservative-icons">subsidies</a>. </p>
<p>But using the bully pulpit and his presidential powers, Trump threatened retaliation against companies <a href="https://www.washingtonpost.com/politics/trump-threatens-consequences-for-us-firms-that-relocate-offshore/2016/12/01/a2429330-b7e4-11e6-959c-172c82123976_story.html">that moved jobs overseas</a>, <a href="https://www.propublica.org/article/national-debt-trump">increased the national debt</a>, <a href="https://www.nytimes.com/2018/09/17/us/politics/trump-china-tariffs-trade.html">instigated trade wars by raising tariffs</a> and gave <a href="https://www.nytimes.com/2020/10/12/us/politics/trump-farmers-subsidies.html">subsidies to farmers</a> who were harmed in the trade war process. These behaviors and policies also fly in the face of conservative principles.</p>
<p>Though Republican Sen. Chuck Grassley still considers Republicans to be <a href="https://www.politico.com/newsletters/morning-money/2019/05/16/grassley-on-what-trump-really-believes-on-trade-437149">“a party of free trade,”</a> Trump’s trade war deviated from past GOP policies – with some exceptions – and was mostly met with <a href="https://www.reaganfoundation.org/reagan-institute/publications/is-the-gop-still-the-party-of-free-trade/">“statements of discomfort</a>.”</p>
<h2>Institutions can support stable civic life</h2>
<p>In addition to protecting limited government and free markets, conservatism strives to preserve American institutions such as the military and the justice system, in the belief that they help organize and maintain the stability of civic life.</p>
<p>Yet Trump’s rhetoric persistently attacked <a href="https://www.nytimes.com/2017/02/17/business/trump-calls-the-news-media-the-enemy-of-the-people.html">the free press</a>, <a href="https://www.theguardian.com/us-news/2022/sep/11/trump-mar-a-lago-witch-hunt-fbi-doj-safety">the Department of Justice, the FBI</a> – <a href="https://www.nytimes.com/2022/08/18/opinion/trump-fbi-conservative.html">often considered a conservative organization</a> – <a href="https://www.nytimes.com/2020/09/09/us/politics/trump-military.html">military leadership</a> and <a href="https://www.nytimes.com/2023/08/17/us/politics/trump-election-lies-fact-check.html">the integrity of the electoral system</a>. Some of these organizations enforce justice and hold government accountable through free speech, ideals that are embedded in the conservative principles <a href="https://mikejohnson.house.gov/7-core-principles-of-conservatism/">laid out by Republican Rep. Mike Johnson</a> for the Republican Study Committee in 2018.</p>
<h2>Conservatives in name only?</h2>
<p>Is Donald Trump solely to blame for the unraveling of American conservative ideals? </p>
<p>Yes and no. One the one hand, he is responsible for implementing anti-conservative policies like trade wars, eroding trust in institutions through his rhetoric and inspiring candidates to run for office in his image. </p>
<p>However, Trump is also a product of his voter base. He loses power without them and therefore often reflects what they want. What do they want, though? Here’s where it’s handy to know some political science.</p>
<p>One of the most <a href="https://doi.org/10.1080/08913810608443650">cited findings in political psychology</a> is that the average American lacks “ideological sophistication.” Most people simply don’t structure their politics around an abstract attitude about the proper role of government. This includes many Americans <a href="https://www.cambridge.org/core/books/ideology-in-america/F22017ACF5F39C3739E7C0E8D89501F8">who call themselves “conservatives</a>.” </p>
<p>Instead, people often form preferences by asking, “How will this policy or person help me and people who are like me? How will this <a href="https://www.cambridge.org/core/books/white-identity-politics/5C330931FF4CF246FCA043AB14F5C626">protect the status of my group</a>?” Positive feelings toward one’s own group and positive – or negative – feelings toward other demographic groups <a href="https://doi.org/10.1080/08913810608443657">hold real influence</a> over <a href="https://doi.org/10.1086/715072">political orientations</a>. This is the stuff that motivates people politically – consequently, there has been a disconnect between the conservative ideals promoted by elites and the attitudes of their voter base. </p>
<p>You may hear conservative principles mentioned sporadically as the 2024 election nears. But until Republican voters reward politicians who embody them, it is unlikely actual conservative ideals do – or will – guide politics on the right.</p><img src="https://counter.theconversation.com/content/213971/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karyn Amira does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Republicans Mike Pence and Mitt Romney both spoke recently about the conservative ideals that animate their politics − and which Donald Trump has violated. Do voters care?Karyn Amira, Associate Professor of Political Science, College of CharlestonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2124972023-10-02T19:44:25Z2023-10-02T19:44:25ZWhere the Supreme Court stands on banning books<figure><img src="https://images.theconversation.com/files/547624/original/file-20230911-15667-2dgyh5.jpg?ixlib=rb-1.1.0&rect=26%2C8%2C2968%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A display of books that have been banned in various places is on view at a community gathering space in Washington, D.C.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/case-showing-books-that-have-been-banned-in-different-news-photo/1647500963">Craig Hudson for The Washington Post via Getty Images</a></span></figcaption></figure><p>Efforts to ban books in public schools and public libraries reached an <a href="https://www.ala.org/news/press-releases/2023/03/record-book-bans-2022">all-time high in 2022</a> and show few signs of abating for 2023, according to the American Library Association.</p>
<p>The recent movement to remove books appears to be a <a href="https://www.npr.org/2022/09/19/1123156201/new-report-finds-a-coordinated-rise-in-attempted-book-bans">coordinated campaign</a> taking place at both the state and local levels; it often targets books that address race, gender or both. Some of these efforts have resulted in <a href="https://www.washingtonpost.com/education/2023/05/18/school-librarians-jailed-banned-books/">laws that threaten to jail librarians</a>.</p>
<p><a href="https://www.theatlantic.com/politics/archive/2023/05/gop-book-bans-democrats-state-legislation/674003/">Most Americans oppose</a> removing books from libraries. That may explain why Illinois recently enacted a law that outlaws banning books: If any public library in the state bans materials because of “<a href="https://apnews.com/article/book-ban-library-lgbtq-illinois-f5516941473e474712eaaafda084de76">partisan or doctrinal</a>” disapproval, it will be ineligible for state funds.</p>
<p>Bans – and the banning of bans – have already ended up in the courts. For example, in a <a href="https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf">lawsuit in Florida</a>, a First Amendment advocacy group, a publisher, parents and authors whose books have been targeted filed suit against the Escambia County School District’s removal of 10 books and restriction of 100 others in the school library. They alleged that school officials violated students’ First Amendment rights when they removed books that discussed, race, racism and LGBTQ+ people. The case is ongoing.</p>
<p>One or more of these sorts of cases could end up at the Supreme Court – but until then, the lower courts will look to existing precedent, set in a legal ruling that dates back to 1982. In that ruling, the court declared that school personnel have a lot of discretion related to the content of their libraries, but this “<a href="https://www.oyez.org/cases/1981/80-2043">discretion may not be exercised in a narrowly partisan or political manner</a>.”</p>
<h2>Encounters with new ideas</h2>
<p>My analysis of that 1982 case, <a href="https://www.oyez.org/cases/1981/80-2043">Board of Education, Island Trees Union Free School District v. Pico</a>, finds useful information that can help put these <a href="https://www.nassp.org/publication/principal-leadership/volume-22-2021-2022/principal-leadership-may-2022/legal-matters-may-2022/">book ban lawsuits in context</a>. </p>
<p>The case specifically focused on the school library and was not about curriculum in the classroom. A school board on Long Island, New York, wanted certain books removed from the shelves of the junior high and high school libraries because board members believed the books to be, they said, “<a href="https://supreme.justia.com/cases/federal/us/457/853/">anti-American, anti-Christian, anti-Semitic, and just plain filthy</a>.”</p>
<p>The banned titles originated in a list compiled by a conservative organization that deemed them objectionable.</p>
<p>One student, on behalf of four other students in the school district, filed a lawsuit in U.S. District Court. The suit claimed that removing the books from the library infringed upon the students’ First Amendment rights to freely access ideas and information.</p>
<p>The school board prevailed in U.S. District Court because the judge found that school boards should have discretion in those matters. But the appeals court overturned that ruling, saying the fact that the school board’s reasoning relied in part on external evaluations of the books raised concerns about censorship.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person standing at a lectern gestures and makes an emotional facial expression." src="https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547608/original/file-20230911-21-p7xqw9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A speaker at a California school board meeting objects to book bans, a topic that has raised passions nationwide.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/retired-police-sgt-gia-rueda-speaks-out-against-book-news-photo/1541835489">Gina Ferazzi / Los Angeles Times via Getty Images</a></span>
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</figure>
<h2>An unclear ruling</h2>
<p>When the case came before the Supreme Court in 1982, the justices agreed to analyze whether the school board’s decision to bar certain books from its libraries, based on the books’ content, violated the students’ rights.</p>
<p>The ruling was divided – five justices affirmed the appeals court’s decision in favor of the students, though not all of them agreed on exactly why. </p>
<p>Justice William Brennan Jr. wrote that the First Amendment does limit school officials’ authority to remove books from school libraries, because that authority infringes on <a href="https://supreme.justia.com/cases/federal/us/457/853/#tab-opinion-1954633">students’ rights to receive ideas and information</a>. Justices Thurgood Marshall and John Paul Stevens signed on to this opinion, which was not a majority opinion. Two justices wrote concurring decisions, but only one agreed with the trio’s overall conclusion that the board had unconstitutionally infringed on students’ rights. Justice Harry Blackmun said the government – the school board – could not deny students access to ideas based on political reasons. Justice Byron White agreed with the conclusion, but did not express a view on the First Amendment question. </p>
<p>Four justices dissented. Chief Justice Warren Burger wrote the main dissent, which was joined by Justices Lewis Powell, William Rehnquist and Sandra Day O'Connor. Their opinion focused more on the issue of accessing books than it did on the First Amendment questions the case raised.</p>
<h2>The current state of the law</h2>
<p>Though there was not a clear majority opinion, the case suggests that school boards have broad discretion over library books but do not have unlimited authority to remove books from library shelves.</p>
<p>The justices agreed that a school library is a place where important information is disseminated to learners – and is a unique place for students to engage in inquiry related to their interests and passions. Therefore, they ruled, school officials may remove books only for sound educational reasons or legitimate purposes – such as pervasive vulgarity or lack of educational suitability.</p>
<p>As a result, school personnel are likely limited in their power to restrict books’ availability simply because they or other officials disagree with the books’ content. </p>
<p>If any of the current cases reach the Supreme Court, the current justices could rule differently, of course. But in the meantime, lower courts hearing book-banning cases will be guided by that precedent.</p>
<p><em>High school student Ian Shaw contributed to the research and writing of this article.</em></p><img src="https://counter.theconversation.com/content/212497/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Suzanne Eckes does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Current precedent relies on a 1982 case in which five justices generally agreed there were limits on a school’s power to ban books, but they didn’t agree on why.Suzanne Eckes, Susan S. Engeleiter Professor of Education Law, Policy and Practice, University of Wisconsin-MadisonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2122412023-09-25T12:22:42Z2023-09-25T12:22:42ZThe Supreme Court’s originalists have taken over − here’s how they interpret the Constitution<figure><img src="https://images.theconversation.com/files/549678/original/file-20230921-23-u7gnp7.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C5973%2C3997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justices who follow originalism dominate in the U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-in-washington-dc-on-april-19-2023-the-news-photo/1251982729?adppopup=true">Stefani Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>Today a majority of U.S. Supreme Court justices are either <a href="https://www.theatlantic.com/ideas/archive/2022/07/roe-overturned-alito-dobbs-originalism/670561/">self-described originalists or strongly lean toward originalism</a>. Yet less than 50 years ago, originalism was considered a <a href="https://www.newyorker.com/magazine/2023/06/12/how-a-fringe-legal-theory-became-a-threat-to-democracy">fringe movement</a>, hardly taken seriously by most legal scholars. </p>
<p>So, what is originalism, and why is it so influential today? </p>
<p>Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that <a href="https://www.npr.org/sections/live-amy-coney-barrett-supreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaning-of-constitution-doesn-t-change-over-time">judges must follow the law as written</a> and not merely ignore it or reinterpret it to their liking.</p>
<p>Why, then, aren’t all judges and legal scholars originalists? </p>
<h2>How to read a constitution</h2>
<p>There is no real controversy among judges or politicians about many provisions of the Constitution, for example that the president must be <a href="https://www.law.cornell.edu/constitution/articleii#section1">at least 35 years old</a> or that <a href="https://www.law.cornell.edu/constitution/articlei#section3">each state gets exactly two senators</a>. </p>
<p>But the challenge arises with certain passages in the Constitution – for example, the <a href="https://www.law.cornell.edu/constitution/fifth_amendment">Fifth Amendment guarantee of “due process</a>,” that is, the right to some sort of legal procedure when the government attempts to deprive someone of “life, liberty or property,” or the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">14th Amendment’s principle of “equal protection of the laws.”</a> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Nine people in black robes, sitting in two rows against a red curtain." src="https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549680/original/file-20230921-22-5bv19h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A majority of these justices embrace originalism to a greater or lesser degree.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243793662?adppopup=true">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<p>What these have in common is that they are written in vague, open-ended language, with no concrete guidance for interpreting the law. Few if any people would deny that all Americans are entitled to the equal protection of the law. But what exactly does that mean?</p>
<p>Does a law providing for marriage only between a man and a woman violate equal protection, because it <a href="https://www.oyez.org/cases/2014/14-556">excludes gay marriages</a>? Does a law that prohibits bigamy violate equal protection, since it excludes plural marriages? How is a judge to decide, given the vagueness of the text?</p>
<p>It is here in these moments that the originalists and their critics part ways. </p>
<p>For the critics, the only way to interpret the abstract principles such as “due process” or “equal protection” is to look to the overall values and purpose of the Constitution as well as evolving societal values – after all, the very words “due” and “equal” are value terms. </p>
<p>When the Constitution was written, for example, only men were eligible for public office. Thus, the Constitution uses “he” 26 times, in reference to the president, vice president, citizens and others, and never uses “she.” Do these rules now apply only to males? </p>
<p>Of course not. </p>
<p><a href="https://www.archives.gov/milestone-documents/constitution">When the Constitution was written</a>, it was assumed that the sexes had separate spheres. Men belonged in politics, women to the domestic sphere. When that fundamental value judgment shifted radically in the 20th century – as expressed in <a href="https://www.law.cornell.edu/constitution/amendmentxix">the 19th Amendment giving women the vote</a> – it meant that the Constitution had to be read in a new way so that “he” is now interpreted as inclusive.</p>
<h2>Flexible originalism</h2>
<p>Now compare the equal protection clause and its application to sexual orientation.</p>
<p>For the originalist, the 14th Amendment guarantee of equal protection was clearly not intended to protect gay rights, given that <a href="https://en.wikisource.org/wiki/Bowers_v._Hardwick">sodomy was a crime at the time</a>. For the non-originalist, societal values have changed radically on this issue, so they believe that now the Constitution should be read in a new way, such that equal protection extends to sexual orientation as well.</p>
<p>For the originalist, allowing such interpretive freedom is to abandon the Constitution altogether. </p>
<p>Yet, <a href="https://scholar.google.com/citations?user=YLNOvJEAAAAJ&hl=en">as a scholar of law and philosophy</a>, I believe that flexible interpretation was the original intention of the framers. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white haired man in 18th century dress - black coat and white shirt." src="https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=901&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=901&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=901&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1132&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1132&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549681/original/file-20230921-29-p28ft1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1132&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Future President James Madison wrote that laws may not have a determinate meaning until they are tested by experience.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/JAMESMADISON/16a5bb98eee6da11af9f0014c2589dfb/photo?Query=James%20Madison%20president&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=701&currentItemNo=0&vs=true">AP Photo</a></span>
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</figure>
<p>James Madison, for example, wrote in <a href="https://guides.loc.gov/federalist-papers/text-31-40#s-lg-box-wrapper-25493391">Federalist 37</a> – part of <a href="https://guides.loc.gov/federalist-papers/full-text">a collection of essays</a> by Madison, Alexander Hamilton and John Jay endorsing adoption of the Constitution – that all new laws will always be “more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” </p>
<p>That is, the meaning of these phrases are not fixed at the time of the passage of the Constitution. That meaning is only “liquidated,” that is, made determinate, in light of future experience involving debate that Madison called “particular discussions” and judicial decisions that he called “adjudications.” </p>
<p>Laws, for Madison, may not have a determinate meaning until they are tested by experience: Just what level of process is “due,” and what does “equality” require? </p>
<p>Hence, in Madison’s view, faithfulness to the original understanding actually requires that laws be interpreted in light of changing values and new circumstances. Principles in the Constitution like “due process” and “equal protection” were deliberately left vague and open-ended precisely so they could evolve in the future. </p>
<p>Ironically, I believe, it is the non-originalists who can claim to be the true originalists. </p>
<p>Why then is originalism so influential? The answer is that the <a href="https://historynewsnetwork.org/article/162099">movement arose in the 1970s and 1980s among conservatives</a>, in response to the liberal decisions of the Supreme Court headed by Chief Justice Earl Warren. Originalism began not as a neutral theory of interpretation but as a <a href="https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1499&context=faculty_publications">rallying cry for conservatives</a>. It is no surprise that the originalists on today’s Supreme Court are also the conservatives.</p>
<p>The central and plausible core of originalism is the idea that judges should not impose their own personal values on the Constitution. But the real debate, I believe, is not about originalism versus the freedom to ignore the Constitution, but rather it is about just what the true, original meaning of the Constitution is.</p><img src="https://counter.theconversation.com/content/212241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Whitley R.P. Kaufman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Only 50 years ago, originalism was considered a fringe movement, hardly taken seriously. Now its adherents dominate the Supreme Court.Whitley R.P. Kaufman, Professor of Philosophy, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2130282023-09-20T12:26:10Z2023-09-20T12:26:10ZHow local police could help prevent another January 6th-style insurrection<figure><img src="https://images.theconversation.com/files/547578/original/file-20230911-17-mbivt.jpg?ixlib=rb-1.1.0&rect=847%2C469%2C2074%2C1374&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Enrique Tarrio, leader of the Proud Boys, at left, and group member Joe Biggs were sentenced to many years in federal prison.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/enrique-tarrio-leader-of-the-proud-boys-and-joe-biggs-news-photo/1230086703">Stephanie Keith/Getty Images</a></span></figcaption></figure><p>Some of the most prominent members of the Proud Boys, a far-right militant group that functions more like a street gang than a militia, have been <a href="https://www.justice.gov/opa/pr/proud-boys-leader-sentenced-22-years-prison-seditious-conspiracy-and-other-charges-related">sentenced to long terms</a> in federal prison for their roles in the Jan. 6, 2021, insurrection at the U.S. Capitol in Washington, D.C. </p>
<p><a href="https://www.vox.com/politics/2023/5/5/23712755/proud-boys-sedition-trial-verdict-conviction-january-6-attack-trump">Experts</a> declare that these successful prosecutions by the U.S. Justice Department will not only discourage far-right groups but also deter people from joining them and engaging in future criminal activity.</p>
<p>Group chairman Henry “Enrique” Tarrio was <a href="https://www.npr.org/2023/09/06/1197824591/former-proud-boys-leader-enrique-tarrio-sentenced-to-22-years-for-jan-6-riot-rol">sentenced to 22 years</a> in federal prison after being found guilty of <a href="https://theconversation.com/regardless-of-seditious-conspiracy-charges-outcome-right-wing-groups-like-proud-boys-seek-to-build-a-white-nation-184592">seditious conspiracy</a>. Group leaders Ethan Nordean, Joe Biggs and Zachary Rehl were also found guilty of <a href="https://www.justice.gov/news/press-releases?search_api_fulltext=+proud+boys&start_date=&end_date=&sort_by=field_date">seditious conspiracy</a> and sentenced to 18, 17 and 15 years, respectively. <a href="https://www.npr.org/2023/09/01/1197186891/proud-boys-member-dominic-pezzola-sentenced-to-10-years-in-jan-6-riot-case">Dominic Pezzola</a>, a Proud Boys member who breached the Capitol building with a stolen police riot shield, was found not guilty of seditious conspiracy but was convicted of a variety of felonies, including assaulting a police officer, robbing government property and obstructing an official proceeding – and sentenced to 10 years in prison.</p>
<p>But despite the lengths of those sentences, prosecutors had asked U.S. District Judge Timothy Kelly to impose even harsher ones, claiming the offenses were related to terrorism. Kelly, however, ruled that claims of terrorism <a href="https://www.washingtonpost.com/dc-md-va/2023/09/01/proud-boys-pezzola-nordean-sentencing-jan6/">overstate the conduct</a> of the Proud Boys sentenced.</p>
<p>That fits with our analysis of the Proud Boys. As <a href="https://scholar.google.com/citations?user=fjys1XAAAAAJ&hl=en&oi=ao">scholars</a> who <a href="https://scholar.google.com/citations?user=cLpO6QwAAAAJ&hl=en&oi=sra">study</a> street gangs and far-right groups, we see that the larger law enforcement community <a href="https://contexts.org/articles/classifying-far-right-groups-as-gangs/">continues to focus</a> – we believe mistakenly – on the belief that, like terrorist groups, white supremacists are coordinated in ideology and intent. Evidence shows that perception actually diverts local police agencies’ attention from <a href="https://theconversation.com/white-nationalist-groups-are-really-street-gangs-and-law-enforcement-needs-to-treat-them-that-way-107691">identifying and managing these groups</a>. </p>
<p>Gangs are generally defined as <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9781003159797-4/demystifying-alt-right-gangs-matthew-valasik-shannon-reid">durable, street-oriented groups whose own identity includes involvement in illegal activity</a>. We believe that if police had treated Proud Boys as <a href="https://www.ucpress.edu/book/9780520300453/alt-right-gangs">members of a street gang</a> from the group’s inception in 2016, the events of Jan. 6, 2021, might have been avoided, or at least reduced in severity.</p>
<h2>The trouble with fighting domestic terrorism</h2>
<p>The United States lacks explicit laws banning domestic terrorism, in part because they are <a href="https://theconversation.com/why-is-it-so-difficult-to-fight-domestic-terrorism-6-experts-share-their-thoughts-165054">constitutionally controversial</a> and may target unintended groups. </p>
<p>That problem has arisen with other criminal laws, such as the <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/mjrl17&div=13&id=&page=">Racketeer Influenced and Corrupt Organizations Act</a>, which was designed to specifically target organized crime groups, like the Italian Mafia. The application of RICO, however, has been adapted and used aggressively against <a href="https://www.npr.org/2022/05/15/1099004661/young-thug-is-the-latest-rapper-to-be-charged-under-historically-problematic-ric">Black, Latino and Indigenous groups</a> and <a href="https://www.npr.org/2023/09/06/1197987659/georgia-has-charged-61-stop-cop-city-protesters-with-racketeering">political protestors</a>.</p>
<p>Nevertheless, some <a href="https://harvardlawreview.org/print/vol-136/responding-to-domestic-terrorism-a-crisis-of-legitimacy/">have suggested</a> that passing laws defining and outlawing domestic terrorism would be the best way to deal with the threats posed by the Proud Boys and other far-right extremists.</p>
<p>But when <a href="https://www.cbc.ca/player/play/1854516291659">Canada</a> and <a href="https://www.rnz.co.nz/news/political/470065/new-zealand-designates-american-proud-boys-and-the-base-terrorist-organisations">New Zealand</a> designated the Proud Boys as a terrorist organization, that <a href="https://doi.org/10.1007/978-3-030-99804-2_3">did not eliminate white supremacists</a> from those countries. It merely forced them to <a href="https://www.adl.org/resources/blog/re-branding-white-supremacy">rebrand</a> themselves with a new name and logo. Treating Proud Boys solely as members of a terrorist organization does not actually stamp out white supremacy groups. </p>
<p>Instead, this perception hurts local law enforcement’s ability to recognize local, disorganized, far-right groups as street gangs and not terrorist groups. Police discretion is immense. Time and again, <a href="https://www.nytimes.com/2021/03/14/us/proud-boys-law-enforcement.html">police have been documented</a> ignoring Proud Boys <a href="https://theintercept.com/2020/07/15/george-floyd-protests-police-far-right-antifa/">violence and intimidation</a>. Failing to arrest members <a href="https://www.wweek.com/news/courts/2018/10/14/why-dont-portland-police-stop-the-proud-boys-from-brawling/">explicitly observed in criminal infractions</a> has only encouraged future acts of violence. Furthermore, local law enforcement’s <a href="https://www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-white-supremacy-and-far-right-militancy-law">history of failing</a> to investigate and arrest members of far-right groups forces the federal government to be solely responsible for prosecuting them.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men stand in an open space inside a building." src="https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547586/original/file-20230911-8058-5e3iib.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Proud Boys member Dominic Pezzola, center with police shield, was among those who stormed the Capitol on Jan. 6, 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolBreachExtremistPlots/5abfd5183c2e41319090fd7fc31ad807/photo?Query=proud%20boys&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=429&currentItemNo=193">AP Photo/Manuel Balce Ceneta</a></span>
</figcaption>
</figure>
<h2>Once a gang, always a gang</h2>
<p>From the very start, Proud Boys founder Gavin McInnes explicitly declared the group a “<a href="https://www.vice.com/en/article/y3v54k/joe-rogan-spotify-proud-boys">gang</a>.” Local police across the U.S. actively investigate and prosecute gangs, especially those whose members are <a href="https://www.amnesty.org.uk/files/reports/Trapped%20in%20the%20Matrix%20Amnesty%20report.pdf">Black</a>, <a href="https://www.nbcwashington.com/news/local/attorneys-and-activists-question-accuracy-of-police-gang-database/2517076/">Latino</a> and <a href="https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/">other people of color</a>.</p>
<p>Proud Boys are predominantly white men who also intimidate and threaten communities around the U.S. with <a href="https://www.theguardian.com/world/2022/sep/19/proud-boys-document-jan-6-violence">disorderly conduct, public harassment</a> and <a href="https://www.hachettebookgroup.com/titles/andy-b-campbell/we-are-proud-boys/9781668611159/?lens=hachette-books">more serious violence, including battery, assault, murder, rioting and hate crimes</a>. This <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118726822.ch22">“cafeteria-style”</a> offending is quite common among gang members participating in a range of criminal activities. </p>
<p>But, perhaps because of the Proud Boys’ claims to be just a “<a href="https://www.start.umd.edu/publication/proud-boys-crimes-and-characteristics">western chauvinist</a>” men’s club, local law enforcement agencies <a href="https://www.nytimes.com/2021/03/14/us/proud-boys-law-enforcement.html">have tended not</a> to treat the Proud Boys and other far-right groups as street gangs. Such increased scrutiny by police of their criminal activities would have produced a much greater deterrent effect. Instead, the lack of acknowledging the Proud Boys’ violent criminal behavior only emboldened them further.</p>
<p>In fact, police have either remained idle or even consorted with Proud Boys members at recent protests, even <a href="https://www.wkbn.com/news/ohio/columbus-police-chief-responds-after-officer-seen-high-fiving-proud-boy/">giving them high-fives</a>, as observed in Columbus, Ohio, at a demonstration against the “Holi-drag” story time event. This type of police engagement is just one element of how <a href="https://doi.org/10.1017/S1742058X18000139">police ignore the threat of white supremacy</a> and its followers.</p>
<h2>Broadening the concept of gangs</h2>
<p>Many Proud Boys fail to exhibit remorse for their actions. <a href="https://www.npr.org/2023/09/01/1197186891/proud-boys-member-dominic-pezzola-sentenced-to-10-years-in-jan-6-riot-case">Pezzola declared “Trump won!” as he exited the federal courtroom</a> after his sentencing. <a href="https://twitter.com/misstessowen/status/1699823971674227184/photo/1">Tarrio</a> is now positioning himself as a <a href="https://www.vice.com/en/article/z3mqva/january-6-trump-apologists-blame-biden-proud-boys">political prisoner</a> to rally support from the GOP.</p>
<p>This raises our concerns that Proud Boys members will continue to be active and violent. Research finds it is <a href="https://doi.org/10.1177/0022427811419368">effective for police to systematically monitor and target groups</a> that exhibit violent behavior and that doing so deters future acts of violence.</p>
<p>Sometimes, new laws can help. In Alabama, for instance, a law enacted in June <a href="https://legiscan.com/AL/bill/SB143/2023">expands the legal definition</a> of groups police might be concerned about. Instead of using a specific term like “street gang,” as most states do, the Alabama law defines a “<a href="https://www.al.com/news/2023/05/alabama-legislation-removes-gangs-in-favor-of-criminal-enterprises.html">criminal enterprise</a>” as any group of three or more people who engage in a pattern of criminal activity. Such an approach aids in removing the bias in law enforcement that street gangs are composed only of urban youth.</p>
<p>We hope that police will collect and share information about far-right groups’ criminal acts with other agencies to help identify people who are active in various areas of a state or even around the country. But in the end, the evidence shows that the Proud Boys, like any street gang, remain primarily <a href="https://www.brennancenter.org/our-work/analysis-opinion/white-supremacist-links-law-enforcement-are-urgent-concern">localized groups</a> that are best dealt with by local police, not federal agents.</p><img src="https://counter.theconversation.com/content/213028/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Proud Boys are more of a loosely affiliated street gang than they are a unified right-wing militia, researchers say. But police ignore the threats from these groups, and their threats grow.Matthew Valasik, Associate Professor of Criminology and Criminal Justice, University of AlabamaShannon Reid, Associate Professor of Criminal Justice and Criminology, University of North Carolina – CharlotteLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2135042023-09-18T14:54:15Z2023-09-18T14:54:15ZTrump on trial: experts answer key legal and political questions about what could happen next<figure><img src="https://images.theconversation.com/files/548316/original/file-20230914-27-vznt4s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former US president Donald Trump outside a New York court on April 4 2023.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/former-president-donald-trump-jr-arrives-2284766697">Lev Radin/Shutterstock</a></span></figcaption></figure><p>Donald Trump has notoriously become the only former US president to face a criminal indictment — much less four. Opinions on the prosecutions, predictably, <a href="https://www.axios.com/2023/08/16/americans-approve-trump-indictment-jan-6-poll">break along partisan lines</a>. </p>
<p>But whether one subscribes to the Trump as victim or villain narratives, the high-stakes charges raise profound legal and political questions. Here’s what’s at stake.</p>
<h2>Can a president be indicted?</h2>
<p>The US constitution <a href="https://thehill.com/opinion/judiciary/4152469-trump-says-he-has-blanket-immunity-not-so-fast/">doesn’t prohibit</a> the criminal prosecution of a current president, and supreme court <a href="https://constitution.congress.gov/browse/essay/artII-S3-5-1/ALDE_00013392/">precedent</a> (in United States v Nixon) makes it clear that the executive is not above the law. However, since 1973, the Department of Justice (DOJ) has maintained a <a href="https://www.reuters.com/article/us-usa-trump-russia-indictment-explainer-idUSKCN1QF1D3">policy</a> (<a href="https://www.justice.gov/d9/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf">reaffirmed in 2000</a>) against prosecuting an incumbent on the grounds of not undermining the <a href="https://www.vox.com/2019/7/24/20708393/robert-mueller-report-trump-olc-justice-department-indictment-charge-sitting-president">capacity</a> of the office.</p>
<p>Congress possesses the ability to <a href="https://www.usa.gov/impeachment#:%7E:text=The%20impeachment%20process,of%20impeachment%20against%20an%20official.">impeach</a> federal officials for crimes of treason, bribery, and “other high crimes and misdemeanors” and remove them from office. Impeachment — unlike an indictment — is primarily a <a href="https://chicagounbound.uchicago.edu/public_law_and_legal_theory/774/">political process, not a legal one</a>. It’s designed to hold presidents accountable for grievous breaches of power, but it happens outside the jurisdiction of the courts.</p>
<p>No similar DOJ restrictions exist on indicting a former president. Nixon v Fitzgerald holds that the president enjoys immunity from <a href="https://constitution.congress.gov/browse/essay/artII-S3-5-1/ALDE_00013392/">civil liabilities</a> related to the duties of office (as do members of Congress). But this does not apply to criminal indictments. Still, because precedent on the question is limited, expect Trump to make a case for <a href="https://www.politico.com/news/magazine/2023/08/22/trump-immunity-supreme-court-00112124">executive immunity</a>.</p>
<h2>Should a current presidential candidate face indictment?</h2>
<p>Trump’s run for the White House again in 2024 complicates the legal terrain. The DOJ has a longstanding norm of avoiding politically sensitive indictments near election cycles (typically, within 60 to 90 days of Americans <a href="https://www.sidebarsblog.com/p/the-legal-consequences-if-trump-announces">casting their ballots</a>). It’s one reason why US attorney general Merrick Garland <a href="https://eu.usatoday.com/story/news/politics/2022/07/19/garland-memo-trump-indictment-election/10097439002/">sought</a> to avoid a Trump indictment in the run-up to the 2022 midterm elections.</p>
<p>As expected, Trump and his GOP allies have framed the DOJ’s prosecutions as “<a href="https://www.thenation.com/article/politics/gop-election-interference/">election interference</a>” and an effort to knock out current US president Joe Biden’s most likely opponent next year. They’ve similarly <a href="https://www.foxnews.com/video/6333798024112">criticised</a> the indictments for trying to distract from the legal woes of the president’s son Hunter Biden, who now faces a <a href="https://apnews.com/article/hunter-biden-investigation-justice-garland-ad1034e274570d65032f8e4f47c0c8f6">DOJ special counsel investigation of his own</a>.</p>
<p>Garland tried to mitigate concerns of politicisation by delegating to special counsel, Jack Smith, the decision on whether to indict Trump. However, because Smith <a href="https://www.wsj.com/articles/indict-donald-trump-its-still-merrick-garlands-decision-jack-smith-guidelines-independent-special-counsel-janet-reno-11669411548">technically reports to Garland</a>, and the DOJ sits within the executive branch, it’s impossible to avoid the appearance of partisanship. For his part, Biden has <a href="https://www.newsweek.com/why-joe-biden-refusing-talk-about-trump-indictment-1792760">shied away from</a> discussing Trump’s cases publicly.</p>
<p>DOJ <a href="https://www.justice.gov/jm/justice-manual">guidelines</a> hold that prosecutions should serve the <a href="https://lawreview.syr.edu/dojs-difficult-dilemma-the-case-for-and-against-prosecuting-a-former-president/">public interest</a>. Considerations include the gravity of the alleged offenses, the level of culpability, potential deterrent effects, likely consequences of a conviction, and any unique circumstances. </p>
<p>In addition to <a href="https://lawreview.syr.edu/dojs-difficult-dilemma-the-case-for-and-against-prosecuting-a-former-president/">arguing</a> that Trump’s indictments are politically motivated, Republicans voice concerns that they will further divide the country.</p>
<p>The DOJ (and New York and Georgia prosecutors) have held that their indictments serve the public interest of maintaining the rule of law and protecting the integrity of US institutions. Yet sceptics suggest that this is essentially tautological. The public interest caveat becomes moot if any prosecution can be linked back to a “law-and-order” justification.</p>
<h2>Can an indicted or convicted candidate run for president?</h2>
<p>Neither the constitution nor US legal precedent prevents a candidate from running for office due to an indictment — or a conviction. Candidates can even run (though not vote in most states) while incarcerated. In 1920, socialist <a href="https://www.politico.com/news/2023/04/06/trump-running-for-president-prison-00090931">Eugene Debs</a> infamously received nearly one million votes — about 3% of the popular vote at the time — when he ran for president while in jail.</p>
<p>Some states <a href="https://www.nytimes.com/article/trump-investigation-conviction.html">outlaw</a> convicted felons from running for office, but these statutes only apply to state and local positions, not federal. Running a campaign or serving as president from jail would pose untold challenges, but it’s not prohibited. An indictment alone can’t disqualify a politician from being elected because all defendants are “innocent until proven guilty”.</p>
<p>Some legal analysts <a href="https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html">contend</a> that Trump should be ineligible for the presidency due to <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">section three of the 14th amendment</a>, which prohibits anyone who has “engaged in insurrection of rebellion” or “given aid or comfort to the enemies thereof” from holding public office again. </p>
<p>But the election interference charges against Trump don’t align exactly with insurrection. If convicted, disqualification would be subject to extensive debate.</p>
<h2>Can presidents self-pardon?</h2>
<p>Timelines for Trump’s trials remain unclear, and possibly more delays and appeals are ahead. Deference goes to the defendant in criminal cases, even if government lawyers prefer speedier trials. If prosecutions are still ongoing, and if Trump is elected, he could dismiss the federal cases (though not the state-level cases) because he will control the DOJ.</p>
<p>The question of a self-pardon is trickier. A president has no pardoning power of any kind over state-level convictions. But the constitution does not expressly forbid a self-pardon at the federal level, although many <a href="https://www.npr.org/2021/01/09/955087860/can-trump-pardon-himself">legal scholars</a> believe that it would violate the precept of “not being the judge in your own case”. The DOJ <a href="https://www.justice.gov/file/20856/download">argued</a> prior to Richard Nixon’s resignation that a president could not self-pardon, but the memo is an opinion only and <a href="https://www.justice.gov/file/20856/download">not law</a>.</p>
<p>At least some of Trump’s current Republican presidential primary opponents, most vocally <a href="https://thehill.com/homenews/campaign/4127531-ramaswamy-doubles-down-on-pledge-to-pardon-trump-amid-fresh-charges/">Vivek Ramaswamy</a>, would consider a pardon if elected. Various commentators have made the case that <a href="https://thehill.com/opinion/criminal-justice/4049903-nine-reasons-biden-should-pardon-trump/">Biden</a>, if re-elected, should do the same. In 1974, then president Gerald Ford <a href="https://constitutioncenter.org/blog/the-nixon-pardon-in-retrospect">pardoned</a> Nixon, which was controversial at the time but largely <a href="https://constitutioncenter.org/blog/the-nixon-pardon-in-retrospect">respected</a> in hindsight. A pardon of Trump, by a Democrat or a Republican, would doubtlessly prove even more fraught.</p>
<p>By all current <a href="https://projects.fivethirtyeight.com/polls/president-primary-r/2024/national/">polls</a>, 2024 is likely to see either Trump or Biden re-elected. But whoever wins may be a pyrrhic victory unless the US is able to restore faith — from both parties — in elections and rule of law.</p><img src="https://counter.theconversation.com/content/213504/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Running a campaign or serving as president from jail would pose untold challenges, but it’s not prohibited.Thomas Gift, Associate Professor and Director of the Centre on US Politics, UCLJulie M Norman, Associate Professor in Politics & International Relations & Co-Director of the Centre on US Politics, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2129442023-09-13T16:49:32Z2023-09-13T16:49:32ZA constitutional revolution is underway at the Supreme Court, as the conservative supermajority rewrites basic understandings of the roots of US law<figure><img src="https://images.theconversation.com/files/547245/original/file-20230908-19-u5ekav.jpeg?ixlib=rb-1.1.0&rect=24%2C0%2C5443%2C3639&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Preamble to the U.S. Constitution, written in 1787 on parchment paper.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-is-the-preamble-to-the-us-constitution-it-starts-with-news-photo/144085092?adppopup=true">Joe Sohm/Visions of America/Universal Images Group via Getty Images</a></span></figcaption></figure><p>In a 2006 episode of the television show <a href="https://www.imdb.com/title/tt0402711/">“Boston Legal</a>,” conservative lawyer <a href="https://www.youtube.com/watch?v=XzmrZWe_9eg">Denny Crane</a> asserted that he had a constitutional right to carry a concealed firearm: “And the Supreme Court is going to say so, just as soon as they overturn Roe v. Wade.” </p>
<p>That was a joke, an unimaginable event, when the show aired 17 years ago. Then in 2022, the court announced <a href="https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html">both</a> <a href="https://www.scotusblog.com/2022/06/in-6-3-ruling-court-strikes-down-new-yorks-concealed-carry-law/">changes</a>, shifting the butt of a joke to the law of the land in a brief span of years – and signaling the start of what is sometimes called a “constitutional revolution.” </p>
<p>Scholars describe a constitutional revolution as “<a href="https://yalebooks.yale.edu/book/9780300231021/constitutional-revolution/">a historic constitutional course correction</a>,” or a “<a href="https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3910&context=mlr">deep change in constitutional meaning</a>.” </p>
<p>As <a href="https://www.constitutionday.com/">Constitution Day</a> is celebrated this year on Sept. 17 – the anniversary of the signing of <a href="https://www.archives.gov/founding-docs/constitution-transcript">America’s basic law</a> in 1787 – I believe a shift of that magnitude is clearly occurring in the recent rulings of the Supreme Court.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Nine people in black robes seated together in an elegant, high-ceilinged room under a chandelier." src="https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=393&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=393&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=393&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=494&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=494&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547247/original/file-20230908-23-fzjq97.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=494&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justices of the Supreme Court pose for their official photo at the Supreme Court building in Washington, Oct. 7, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243795208?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
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<h2>Revolutionary rulings</h2>
<p><a href="https://theconversation.com/a-seismic-change-has-taken-place-at-the-supreme-court-but-its-not-clear-if-the-shift-is-about-principle-or-party-190815">In the 2021-22 term</a>, the Supreme Court’s dramatic rulings focused on <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">abortion</a>, <a href="https://theconversation.com/supreme-court-sweeps-aside-new-yorks-limits-on-carrying-a-gun-raising-second-amendment-rights-to-new-heights-183486">guns</a>, <a href="https://theconversation.com/why-the-supreme-courts-football-decision-is-a-game-changer-on-school-prayer-184619">religion</a> and <a href="https://theconversation.com/the-supreme-court-has-curtailed-epas-power-to-regulate-carbon-pollution-and-sent-a-warning-to-other-regulators-185281">the power of federal agencies</a>. In a nutshell, the justices removed the recognition of a constitutional right to abortion, expanded gun rights and religious rights, and restricted the power of agencies like the Environmental Protection Agency to craft regulations.</p>
<p>In the recent 2022-2023 term, the court again addressed <a href="https://theconversation.com/a-business-can-decline-service-based-on-its-beliefs-supreme-court-rules-but-what-will-this-look-like-in-practice-207073">religion</a> and the <a href="https://theconversation.com/now-that-president-bidens-student-loan-cancellation-program-has-been-canceled-heres-whats-next-208551">power of the federal bureaucracy</a>, also adding <a href="https://theconversation.com/affirmative-action-lasted-over-50-years-3-essential-reads-explaining-how-it-ended-209273">race</a> as a major area of controversy in a decision that ended affirmative action in college admissions.</p>
<p>The core rulings on these disputes were all 6-3, with the <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">court’s new supermajority</a> of conservative justices on one side and the three remaining liberals in dissent.</p>
<p>Here are the three major cases from the past term expanding the constitutional revolution:</p>
<h2>Race: Students for Fair Admissions v. Harvard College</h2>
<p><a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_l6gn.pdf">This case</a> challenged the constitutionality of affirmative action programs at American universities. Unlike previous affirmative action cases, which featured white applicants who claimed to have been discriminated against in favor of minority students, this lawsuit focused on another minority – Asians – who believed they were treated worse than other minorities and whites in the Harvard admissions process.</p>
<p>The heart of the controversy is about the meaning of the <a href="https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/702">equal protection clause</a> of the <a href="https://www.archives.gov/milestone-documents/14th-amendment">Fourteenth Amendment</a>: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”</p>
<p>The court ruled that the equal protection principle means public institutions may not take race into account, even when they are using racial preferences to the advantage of minority groups who suffered a history of oppression.</p>
<p>The Harvard case effectively overrules <a href="https://www.oyez.org/cases/2002/02-241">a prior decision</a> in 2003 that allowed universities to use racial preferences in order to achieve a degree of diversity on campus.</p>
<p>The new constitutional rule is that the equal protection clause is a promise to treat all citizens of all races the same, rather than the alternative understanding of the clause’s promise to move society toward equity among racial groups, which allows or even encourages the differential treatment of some groups in order to make up for past injustices.</p>
<h2>Religion: 303 Creative v. Elenis</h2>
<p><a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">This case</a> asked whether the First Amendment’s protections of religion and speech override the protections for LGBT citizens in state laws. Does a business owner who wants to provide only wedding websites for celebrations that comport with their religious convictions have to provide the same service for couples whose unions they do not endorse?</p>
<p>The court ruled that regardless of the religious component, it is a violation of free speech for the government to compel the expression of any messages inconsistent with one’s beliefs, even in the context of a business transaction.</p>
<p>While technically a ruling on speech, this is a controversy about religious citizens demanding exemptions from anti-discrimination laws. The ruling is part of a <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">long trend expanding religious liberty</a>.</p>
<p>The new rule in this case extended the previous term’s dramatic change in the constitutional law of religion in the praying coach case, <a href="https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/">Kennedy v. Bremerton</a>. In that case, the court ruled that the religion clauses at the beginning of the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> have a clear meaning: The government may not coerce any citizen when it comes to religion – either toward or away from religious beliefs. If any action of the government is pushing someone to abandon or embrace religious behavior, that is not allowable. </p>
<p>In the case of the praying coach, this meant a public school could not block his display of prayer at a sporting event, something that would have been seen as an unconstitutional entanglement of government with religion under previous courts. The new interpretation of the First Amendment explained in this line of rulings – giving the benefit of the doubt to religious believers whenever there is a judgment call – dramatically increases the protections for religious citizens.</p>
<h2>The administrative state: Biden v. Nebraska</h2>
<p><a href="https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf">The justices in this case</a> struck down President Joe Biden’s <a href="https://studentaid.gov/debt-relief-announcement">student loan forgiveness program</a>, which would have eliminated up to US$20,000 of debt for millions of Americans, with a total price tag of approximately $430 billion. The decision to bar the administration’s program was grounded in a new principle known as the “<a href="https://crsreports.congress.gov/product/pdf/IF/IF12077">major questions doctrine</a>.”</p>
<p>This principle diminishes the power of many federal agencies. It first appeared in the court’s rulings during the pandemic, halting the Biden administration’s <a href="https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf">eviction moratorium</a> and <a href="https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf">vaccine mandate</a>. The clearest statement of the doctrine came in 2022 in <a href="https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/">West Virginia v. EPA</a>, limiting the agency’s ability to introduce new regulations curbing greenhouse gas emissions and shifting energy production toward cleaner sources. </p>
<p>The doctrine asserts that an administrative agency – like the Department of Education, which initiated the loan forgiveness program – cannot decide what the court sees as a major political question, which includes doing something with a large price tag or making a dramatic change in policy, unless the agency has explicit authorization from Congress. </p>
<p>The justification for the new doctrine, expressed most clearly by <a href="https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf#page=40">Justice Neil Gorsuch</a>, is that only Congress wields the authority delegated by the voters, who can reward or punish those members of Congress in the next election. Federal agencies are not limited by the same control through elections, and are wielding the delegated authority of Congress rather than their own inherent power. The major question doctrine argues that if agencies are allowed to make major policy decisions, we do not have representative government as demanded by the Constitution.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large granite building with a sign in front of it." src="https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547263/original/file-20230908-27-trso3u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Supreme Court has issued rulings in the past two years curbing the power of government agencies such as the EPA.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpFuelEconomy/2cc48b47e8604200bbe08d2653d69bcd/photo?Query=EPA%20headquarters%20building%20Clinton&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=638&currentItemNo=7&vs=true">AP Photo/J. Scott Applewhite</a></span>
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</figure>
<h2>Destination unknown</h2>
<p>This constitutional revolution could lead far beyond abortion, guns, race, religion or the administrative state. What is known on this Constitution Day is that the revolution will likely continue, expressed in Supreme Court opinions crafted by the new supermajority of conservative justices.</p><img src="https://counter.theconversation.com/content/212944/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The changes wrought by the new conservative majority in the US Supreme Court are revolutionary.Morgan Marietta, Professor of Political Science, University of Texas at ArlingtonLicensed as Creative Commons – attribution, no derivatives.