0:17

Hey, welcome back, Faithful Politics

0:17

listeners and viewers.

0:19

If you're watching our YouTube channel,

0:19

I'm your political host, Will Wright, and

0:22

your faithful host, Pastor Josh Bertram is

0:22

out today.

0:27

But we have with us, returning to us,

0:27

actually, Professor Henry L.

0:31

Chambers Jr., who teaches in rights in the

0:31

area of constitutional law, criminal law,

0:36

and religion. And if you remember, we had him on to talk

0:37

about...

0:40

when Trump was going to be banned from the

0:40

Colorado ballot.

0:45

And now he's returned to give us his

0:45

thoughts about the recent Supreme Court

0:50

case that just occurred. So, and welcome back, Henry.

0:53

Good to see you, Will. Good to see you, good to talk with you.

0:56

Yeah, good to talk. You know, I was thinking recently,

0:57

especially for like folks that in the

1:02

world of academia, like, do you utilize a

1:02

lot of these cases like in your

1:09

curriculum? Because I feel like they're just a

1:10

mountain of curriculum and stuff you could

1:15

review in your classes. Yeah, it's a great question.

1:19

There are so many things that we can think

1:19

about and we can use that we just have to

1:24

make choices. And it's the making of the choices that's

1:25

the key.

1:28

So when I think about this case or the

1:28

oral argument, if I were teaching the

1:35

basic constitutional law course right now,

1:35

we would talk about what the justices are

1:40

thinking about in oral argument even

1:40

before they issue an opinion.

1:45

because we're not sure what the opinion is

1:45

gonna be, but given the conversation that

1:49

occurred, we have a sense of what's what.

1:52

I'd do the same thing if I were teaching

1:52

my voting rights course this semester.

1:58

I had a good chance to talk with a

1:58

colleague of mine in front of a group of

2:03

students last week about what was going

2:03

on, and pretty interesting to hear what

2:10

folks asked. It was the day before the oral argument.

2:15

So it was interesting, but talking through

2:15

those issues, very important for law

2:20

students, very important for non-law folks

2:20

to also talk about those issues.

2:25

Got it. Yeah.

2:29

I didn't go to school for law or

2:29

constitutional law.

2:32

I actually went to school for occupational

2:32

safety, of all things.

2:35

And it's one of those like, doing this

2:35

podcast has sort of reinvigorated my

2:42

interest in a lot of the civic classes I

2:42

had decades ago.

2:46

And it's like, I'd love to just one day

2:46

just go into one of the classes of some of

2:51

our guests that we've had on just to hear

2:51

them speak because I'm just fascinated by

2:55

it. And like the students that you teach,

2:55

because you teach at a law school, so I'm

3:02

assuming that most of the students there

3:02

actually want to be there.

3:05

Like this isn't just like an elective or

3:05

something.

3:08

You know, that's a real interesting

3:08

question.

3:11

They wanna be here, but part of the

3:11

question for some law students is why do

3:17

they wanna be here? That is, do they wanna be here because

3:18

this is where they go before becoming

3:21

lawyers, or do they really wanna think

3:21

about the law?

3:26

And we have a lot of folks who are happy

3:26

to be here and recognize that they need to

3:30

learn things before they can practice.

3:32

But you also have some people who say, I'm

3:32

not sure that I would want to be in this

3:37

situation if it weren't functionally

3:37

required in order to become a lawyer.

3:43

And certainly different parts of the law

3:43

can excite people in different ways.

3:50

The constitutional law question though for

3:50

me is one where I say,

3:55

everybody whether in law school or out of

3:55

law school has got to think about civics,

4:00

has got to think about constitutional law

4:00

and what it means because it's what

4:05

tells us what the government does or what

4:05

it's appropriate for the government to do.

4:10

So I would certainly love to have you

4:10

swing into one of my voting rights courses

4:16

and we can talk in general about what goes

4:16

on, what the Constitution says in terms of

4:24

figuring out how do we want the law to

4:24

work for us, we the people.

4:29

Hmm, got it. Yeah, that's really cool.

4:33

So talking about this case in particular,

4:33

and before I kind of get into the

4:38

substance of the actual arguments, can you

4:38

kind of walk us through of like the

4:45

procedural steps of how like a case in

4:45

Colorado actually gets to the Supreme

4:53

Court? Like we've...

4:56

We've actually talked about quite a few

4:56

Supreme Court cases like on this pod, but

4:59

I don't think we've ever really talked

4:59

about like, how does a case from Colorado

5:04

get to the Supreme Court and how do the

5:04

justices decide that's what they want to

5:08

hear? Right, right.

5:11

Really good question. Most lawsuits, if not all lawsuits, start

5:14

with somebody saying, I just don't like

5:20

what's going on. And I'm going to go to a court to figure

5:22

out, or to have the court figure out

5:25

whether I should get some relief.

5:28

So in this situation, you have the

5:28

government of Colorado, state of Colorado,

5:34

that has to figure out who should go on a

5:34

primary ballot.

5:41

And as of a certain day, the ballot has to

5:41

be printed.

5:44

So before that, they have to figure out

5:44

who's going to go on the ballot.

5:48

Apparently, a number of Republican voters,

5:48

actually in Colorado, complained to the

5:54

state that Donald Trump shouldn't be on

5:54

the ballot because he was not qualified

5:59

for the office that he was seeking.

6:03

So they go, they ask the secretary, I

6:03

think they asked the secretary of state

6:08

who was taking care of the ballots and

6:08

said, well, he shouldn't be on the ballot.

6:12

And that then triggers an issue, triggers

6:12

a problem.

6:16

Colorado says, okay, what do we do with

6:16

this?

6:21

The secretary of state and the Republican

6:21

party and Donald Trump end up in a trial

6:27

together. And after the trial, the Colorado

6:33

Yeah, he's not qualified.

6:35

And that goes through the Colorado Supreme

6:35

Court as well.

6:39

Well, now the question becomes, is there a

6:39

constitutional issue?

6:44

that the Colorado State Court has decided,

6:44

if so, then the matter can be appealed to

6:50

the US Supreme Court, and the US Supreme

6:50

Court then figures out what to do with the

6:54

situation. And in this circumstance, the 14th

6:55

Amendment of the Constitution and a number

6:59

of other issues were triggered, so it

6:59

becomes an issue that the Supreme Court

7:04

says, yes, this is an issue that we should

7:04

resolve.

7:08

This is one that we should take a look at

7:15

and constitutional issues. Hmm, got it.

7:18

And the Supreme Court, like, I mean, I'd

7:18

imagine their calendar is pretty booked

7:23

and this case sort of came out of left

7:23

field, so to speak.

7:27

So, I mean, like, how do they decide that,

7:27

yeah, we want to rush this one, you know,

7:33

versus, you know, another relevant water

7:33

rights case or something that they would

7:38

argue? Right, well they set their own calendar

7:39

and they make their own decisions.

7:45

So they have the latitude to hear things

7:45

on an emergency basis or no, and that

7:52

decision in and of itself is an important

7:52

one.

7:56

If it's a situation where they say, look,

7:56

they're all important but they're not

8:00

pressing, then they can say, well we'll

8:00

hold it over for the next...

8:06

We'll put it in line so that we hear it

8:06

when we hear it.

8:10

Or they can hear a case that jumps it to

8:10

the front of the line, like the immunity

8:14

case that's also coming through that the

8:14

DC Circuit decided last week or two weeks

8:20

ago that the Supreme Court is saying,

8:20

okay, now that it's been appealed, let's

8:24

decide whether we're going to take it on.

8:27

So they can set their calendar based on

8:27

whether they think a particular problem

8:32

absolutely has to be resolved right now.

8:40

Even the general election, although this

8:40

one really had to do with the primary,

8:44

that's been resolved. But one that has to deal with the general

8:47

election, you've got to start cranking on

8:51

that one. You can't just stick it into the normal

8:52

course because then it won't get decided

8:56

before it needs to be decided for the 2024

8:56

election.

9:00

Got it.

9:03

So with the oral arguments, what are some

9:03

of your big picture takeaways?

9:11

And then we'll drill down to maybe some of

9:11

the other more detailed issues.

9:16

Sure, sure. Let me, well I'll take a broad, one broad

9:17

comment, one comment that's in the weeds

9:24

but in the weeds is still I think a

9:24

fascinating question.

9:29

The broad comment is that the court seemed

9:29

willing to functionally ignore the notion

9:37

that the 14th Amendment Section 3 exists.

9:40

Now, some people would say, oh you're

9:40

being unfair.

9:43

Fine. Well, let me explain what I mean.

9:45

What I mean is, it's clear that the

9:45

language is there, but the way they talked

9:49

about it, it was as though there's no

9:49

remedy that they are willing to provide.

9:55

So they say, well, we recognize that

9:55

someone who has engaged in insurrection

10:03

and who has not had that disability

10:03

removed by Congress is in fact not able to

10:08

serve.

10:11

But then they sort of throw their hands up

10:11

and say,

10:14

Ah, but what are you gonna do? the

10:17

And that's the piece where you look at it

10:17

and say, well, hold on a second.

10:20

The 14th Amendment is there.

10:22

The language is relatively clear.

10:25

Well, it's very clear regarding if you

10:25

qualify as someone who cannot serve.

10:31

If you are someone who has been

10:31

disqualified, then you cannot serve.

10:34

But the notion that there's not really

10:34

much that we can do about it is

10:39

fascinating. So that's one, and we can talk about that

10:39

a little bit more.

10:42

Here's the piece that's a little bit more

10:42

in the weeds, but is, I think,

10:46

relevant, the court continued to talk

10:46

about national elections.

10:53

And that's fascinating because there's no

10:53

such thing as a national election.

11:00

We have federal elections or more

11:00

precisely we have state elections for

11:07

federal offices. Now, I realize that people would say,

11:09

okay, what's the difference?

11:12

And isn't the presidential race a national

11:12

race?

11:14

The answer is no, it's not. A national race would be one that involved

11:16

a national popular vote where a state in

11:22

one jurisdiction is counted the same as a

11:22

state in another jurisdiction.

11:27

That's not what we have. We have what amounts to 51 separate state

11:29

elections.

11:33

We then amalgamate the

11:36

the election results through the electoral

11:36

college, but we don't amalgamate the

11:41

individual votes. So I understand what they mean when they

11:43

say what it's a national election because

11:48

election returns from different states

11:48

will play into who's elected.

11:54

But it's not really a national election.

11:56

It's a federal election, where we take the

11:56

results from individual states.

12:03

and we put them together through the

12:03

electoral college.

12:05

That's just a very, very different thing.

12:08

And one of the reasons why I say it's in

12:08

the weeds, but it's very important is they

12:12

also talk about national officials.

12:17

When they should be talking about federal

12:17

officials, and they talk about folks like

12:22

U.S. senators and suggest, well, you know,

12:22

that's a national office.

12:26

No, it's not. It's not.

12:28

We elect senators by state.

12:32

So there's a pretty good and we only elect

12:32

them by state after the 17th amendment

12:36

which wasn't passed until 1913.

12:39

So when the 14th amendment was passed they

12:39

were still selecting U.S.

12:43

senators by the legislature.

12:46

So while the U.S. senator serves in a national body, that

12:48

person comes from a state and is selected

12:56

from the state. So to my mind, it's very important to

12:58

distinguish between people who serve as US

13:05

government officers and people who serve

13:05

as essentially delegates to the federal

13:12

government from individual states.

13:15

And that's a distinction that they simply

13:15

did not make.

13:19

And I think it's ironic because you hear a

13:19

lot of talking about, well, states' rights

13:23

this, states' rights that. The states themselves have certain powers and

13:28

certain abilities.

13:33

One of those abilities that is at the

13:33

state-based level is selecting US senators

13:38

and US representatives, but the court just

13:38

kept throwing on the concept of, well,

13:43

it's a national elect... no it's not.

13:46

And they should know better, but I think

13:46

that they have gotten into the...

13:52

into the nomenclature of talking about

13:52

national this, national that, at least in

13:56

this case. But oh goodness, if you want to talk about

13:57

things like the Affordable Care Act, oh,

14:02

they're talking about state prerogatives

14:02

as much as possible.

14:04

So I think it's very, very interesting to

14:04

sort of walk through the way the court

14:09

talks about these particular issues. Yeah, and you mentioned something that I

14:11

heard quite a bit in the oral arguments

14:16

about Congress removing disabilities.

14:20

Can you expand on that? Yeah, yeah.

14:24

The notion is that if you look at the 14th

14:24

Amendment as a whole, and I'll give you

14:28

one more surprising piece of the puzzle,

14:28

the 14th Amendment has five different

14:33

sections.

14:35

So, Section 3, of course, is the third

14:35

Section 5.

14:38

Section 2 also deals with voting.

14:41

There's an irony, and one of the ironies

14:41

is that nobody mentions Section 2, and

14:48

whether we should read Section 3...

14:51

at the same time as section 2. I mean, they were passed in the same

14:52

amendment, so one might think that

14:57

arguments related to section 2 might also

14:57

relate to section 3, but nobody talked

15:02

about it. It was as though section 2 does not exist.

15:06

Well, you get to section 5, and section 5

15:06

says Congress can enforce the 14th

15:12

Amendment as they see, essentially, as

15:12

they see, as they see fit or as

15:16

appropriate. Okay, fine. So one of the arguments that was being

15:19

made is, well, if there's no obvious

15:24

solution to the problem, and there's no

15:24

obvious way to resolve the issue, then we

15:31

should really let Congress figure out how

15:31

to deal with the issue, at least where it

15:36

involves scare quotes, national offices.

15:42

When it involves state offices, well maybe

15:42

we'll let state officials figure that out,

15:46

but when it comes to national offices,

15:46

Congress should deal with the issue.

15:51

Well, okay, you can say that, but to the

15:51

extent that states have to figure out

15:57

who's on their ballot based on who is

15:57

qualified and based on state law, it's an

16:04

odd thing to say Congress should be the

16:04

one to figure this out.

16:09

The court pointed to a couple of

16:09

precedents that may suggest that Congress

16:14

should be involved in this process because

16:14

you don't want states doing these issues

16:21

on their own, but I don't think that the

16:21

precedents are clear on those issues.

16:26

Instead, I think it's the court saying, as

16:26

some other folks have argued, we want an

16:31

exit ramp. We know what we should do, but we want an

16:33

exit ramp so that we don't have to decide

16:36

the issue. And one of them is saying, well, really

16:37

Congress should make the determination

16:41

here. Interesting because section three actually

16:43

contains in at the end of section three,

16:49

not section five, but section three says

16:49

that Congress can remove the

16:53

disqualification disability by a

16:53

two-thirds vote.

16:57

So arguably section three says

17:01

If you're disqualified, you're

17:01

disqualified, regardless of what Congress

17:05

says, but Congress can remove that

17:05

disability by a two-thirds vote.

17:10

So arguably, Congress's responsibility is

17:10

already embedded in Section 3, but clearly

17:15

the Supreme Court's position is, we don't

17:15

want to deal with this.

17:19

We just don't want to deal with this, so

17:19

let's not deal with it.

17:24

Is it sort of like the equivalent of like

17:24

a congressional pardon or something?

17:30

There's a real good argument that it is.

17:32

That is, take the folks who were involved

17:32

in what clearly amounts to an

17:37

insurrectional rebellion, the Civil War.

17:39

And the notion is, well, those people,

17:39

essentially Confederates and similar

17:44

folks, at least Confederates who had taken

17:44

an oath to support the Constitution before

17:50

they then engaged in insurrection. But let's take somebody who clearly had

17:52

done that.

17:54

Let's take, say, Robert E. Lee. Robert E.

17:58

Lee is immediately unable to run for

17:58

president or any of the other offices that

18:04

are mentioned in Section 3 of the 14th

18:04

Amendment.

18:10

If we deem that to be simply the case

18:10

because we read Section 3 of the 14th

18:16

Amendment, then without any additional

18:16

concern or any additional legislation,

18:22

Robert E. Lee can't serve.

18:25

Well, the notion is, well, because there

18:25

may be a difference of opinion regarding

18:31

service, maybe we should require Congress.

18:36

to first say who can't serve, and then

18:36

once it's clear who can't serve, then

18:42

Congress can say by two-thirds vote, oh

18:42

you can.

18:46

So yeah, that is the way we would think of

18:46

that two-thirds language as being kind of

18:51

like a pardon, because yes, it removes a

18:51

disability that the Constitution clearly

18:57

sets forth on a particular individual.

19:06

I think the court's position is fine, we

19:06

understand the pardon piece, but we still

19:12

think Congress should in the first

19:12

instance still say who's disqualified from

19:17

serving. And that's an interesting way of thinking

19:18

about language that's relatively clear.

19:26

So, Justice Kavanaugh mentioned something

19:26

about an 1869 decision on the Griffin's

19:33

case. Is that connected somehow?

19:37

It is. Here's the messy part of Griffin's case

19:38

and the problem with facts.

19:45

Sometimes we say bad facts make bad law.

19:48

And Griffin's case may be one of those

19:48

situations.

19:51

The problem you ran into in Griffin's case

19:51

is you had a defendant, a black defendant

19:57

who had been convicted.

20:00

The problem you ran into was that the

20:00

judge in the case

20:05

was someone who should have been

20:05

disqualified under section 3 of the 14th

20:11

amendment. So the defendant said, well hey, if the

20:12

judge should have been disqualified, then

20:18

the case should essentially be reversed

20:18

because he didn't have the authority to

20:24

serve. He shouldn't have been in office.

20:27

And Sam and Chase, who was sitting as a

20:27

circuit court judge at that time in that

20:31

case, said, no.

20:34

No. We're not going to say that every decision

20:35

made by somebody who should not have been

20:42

serving or who was immediately

20:42

disqualified when the 14th Amendment was

20:46

passed, we're not going to say that every

20:46

judgment made by that person moving

20:50

forward is void.

20:52

Well, we can kind of understand why the

20:52

court would say that, why Justice Judge

20:58

Salmon would say that. It's like, look, that would just throw

20:59

everything into disarray.

21:05

In a situation like that, we ought to rely

21:05

on Congress to figure out when that person

21:11

gets removed and how they get removed.

21:14

Well, you can understand why in that

21:14

particular situation, we might say, yeah,

21:19

we're not going to look at the 14th

21:19

Amendment and say that person was

21:22

disqualified as of the date the 14th

21:22

Amendment was passed.

21:27

Instead, we're going to wait. What Justice Kavanaugh essentially said

21:29

is, well, given that...

21:33

Shouldn't that be the case in all

21:33

circumstances?

21:37

And doesn't that mean that Congress should

21:37

be the one who always determines how the

21:41

14th Amendment Section 3 gets applied?

21:44

And a reasonable response is, come on,

21:44

man.

21:48

It's one thing if you're in office. It's another thing if you're running for

21:50

office.

21:53

And if you're running for office, surely

21:53

it makes sense for a state to be able to

21:56

simply say no.

21:59

You are not qualified for office,

21:59

therefore you can't run and you can't get

22:05

elected. That is a completely different factual

22:06

situation than, hey, I'm already in

22:12

office, now you're trying to pull me out. And not only are you trying to pull me

22:14

out, but you're trying to say that all the

22:18

decisions that I made as of the moment the

22:18

14th Amendment was passed are void.

22:23

That might be a step too far, and we

22:23

understand that, but when Kavanaugh,

22:29

then says, let's apply that to other

22:29

situations, we have to say, oh okay, you

22:34

really don't want to get involved in this. It's not that it's too hard, it's just too

22:37

messy.

22:41

Okay, it's too messy, you don't want to

22:41

get involved.

22:44

And justices on both sides of the

22:44

historical divide, both sides of the

22:50

divide, were it seemed to be in that

22:50

situation.

22:53

Justice Kagan doesn't seem to want to get

22:53

involved.

22:56

Justice Jackson doesn't really seem to

22:56

want to get involved, although at least

22:59

Justice Jackson said, well, let me make an

22:59

argument.

23:03

I'm not thrilled with her argument. They're all really, really smart.

23:07

She's really, really smart. I think her argument is very problematic,

23:08

but it is what it is.

23:13

I think it's her way of trying to find

23:13

another off-ramp, but it is what it is.

23:18

I guess why do you think that there was

23:18

some, I don't know, trepidation to really

23:23

lean in hard on this case?

23:28

Yeah, I think a big part of the problem is

23:28

that it is very messy and people are

23:36

worried about partisanship.

23:40

That is, you had a couple of, I think

23:40

Chief Justice Roberts at one point said,

23:46

well, you know, any state could decide

23:46

that somebody had been involved in an

23:51

insurrection and at that point you can

23:51

start disqualifying people all over the

23:55

place. And, okay, yes, different states can do

23:57

wacky things.

24:44

Whether or not that is a reason to not

24:44

enforce the Constitution is a different

24:52

story. I assume that they are being honest that

24:54

that's what their concern is.

25:00

I assume that they are worried that a

25:00

state may decide that Joe Biden somehow,

25:05

some way, somewhere has engaged in

25:05

insurrection.

25:09

But at some level, that would boil down to

25:09

trusting state courts and state

25:15

governments to do the right thing. Now, if they want to come out and say, we

25:17

can't trust state governments and state

25:21

courts to do the right thing, it would be

25:21

in some ways refreshing for them to say

25:26

that. But in other contexts, they don't say that

25:28

at all.

25:31

when it comes, for example, to death

25:31

penalty cases, they don't go around and

25:36

say, oh, well, we just don't trust state

25:36

courts.

25:39

No, they try to bend over backward to

25:39

trust state courts.

25:41

So it's an interesting concept that in

25:41

this situation, they say, we can't trust

25:46

state courts and we can't fix the problem

25:46

as opposed to others.

25:50

And they never answered the question,

25:50

well, what do we do with the notion that

25:54

Colorado, in all fairness, had a trial?

25:59

and did the kinds of things that you would

25:59

expect a state to do to figure out whether

26:04

or not President Trump engaged in

26:04

insurrection and whether you like the

26:10

conclusion they reached or not, they did

26:10

it in the way that we have historically

26:15

expected states to do things.

26:17

In the same way that when they have a

26:17

trial, I don't think Colorado has a death

26:22

penalty, but in a trial, in a criminal

26:22

trial, if someone's found guilty of

26:26

something, trust that verdict, they say we should

26:29

trust it until there is great reason to

26:35

believe that it's not trustworthy.

26:37

So very interesting in terms of how they

26:37

think about who to trust, how to trust,

26:42

when to trust, and what they believe are

26:42

the real concerns with courts getting

26:49

outside of what they think is appropriate

26:49

adjudication.

26:55

Just real interesting to hear that

26:57

that skepticism in the court.

27:00

Hmm. Outside of Griffin, like has the Supreme

27:00

Court heard a case similar to this that

27:07

you're aware of? It's, it's, I'm not sure they've heard one

27:08

that's just like this one.

27:14

There was a very small number in the early

27:14

1870s, the Congress passed an Amnesty Act,

27:24

which essentially made most of the folks

27:24

involved available to run for office.

27:30

So there's a very, very small even number

27:30

of instances that were possible for the

27:35

Supreme Court to hear a case like this. Now, lower courts have heard cases along

27:37

these lines and have come out in some

27:42

circumstances and said, yeah, you're not,

27:42

you're disqualified from office.

27:46

But I don't think the Supreme Court has

27:46

heard a specific case along these lines.

27:52

Like I say, one of the reasons is because

27:52

of that Amnesty Act 1.

27:56

And number two, you just haven't had

27:56

people engage in what even

28:00

comes close to insurrection or rebellion

28:00

at this level.

28:05

And that's the other piece of the puzzle

28:05

is yeah the court hasn't done anything in

28:09

part because you haven't had people act

28:09

the way folks acted on January 6th.

28:14

And I'm even leaving aside at this point

28:14

whether the court believes that would

28:18

happen on January 6th was an insurrection

28:18

or rebellion.

28:22

That's another loaded question that they

28:22

did not really seem to want to answer at

28:28

all. Yeah, yeah, it was kind of, it did seem

28:29

like they were very precedent-averse.

28:40

And, I mean, all the justices, the liberal

28:40

justice and the conservative justice,

28:45

which struck me as kind of bizarre.

28:47

But, you know, I'm curious, depending on

28:47

which way that they rule,

28:55

And I'll wait till the end to get your

28:55

thoughts on how you think they'll rule,

28:58

but depending on how they rule, what would

28:58

that mean, I guess, moving forward with

29:06

other cases of this magnitude?

29:09

People will cite the Supreme Court, the

29:09

whatever Trump v.

29:12

Anderson case. Because I think, if I recall, there is

29:15

a...

29:20

person running, I don't know, for some

29:20

state office that was barred from, you

29:25

know, like running because of like the

29:25

insurrection or because of the section

29:31

three of the 14th amendment. So like, so how do cases like that and

29:32

future cases, you know, will be affected

29:38

by however they rule you think?

29:41

Yeah, it's a great question and the effect

29:41

will depend on how precisely they rule.

29:48

I've seen some folks who've argued that

29:48

the court will likely argue that for

29:54

again what we call national offices,

29:54

Congress needs to be the body to figure

30:00

that issue out. But that for state offices, they're

30:01

probably going to let state legislatures

30:06

and state secretaries of state figure it

30:06

out.

30:09

The argument being, that's a purely state

30:09

matter.

30:14

States can handle that on their own.

30:17

It is interesting though to me because

30:17

there's no reason

30:22

in the language of the Constitution to

30:22

suggest that there's any distinction

30:25

between the two. Folks are simply disqualified and the

30:27

question of what qualifies as a

30:32

disqualification is one that in theory

30:32

should simply be decided by whomever has a

30:40

responsibility for things like ballot

30:40

access and issues along those lines.

30:44

I'll be very interested if someone says,

30:44

well, Congress should be responsible for

30:50

national offices. We've already had Congress say that I

30:52

think it was a, it may have been a joint

30:58

resolution. Well, actually it may have just been a

31:00

resolution of the House, I think it's just

31:02

a resolution of the House, that President

31:02

Trump did not engage in insurrection.

31:08

Okay. We have a, I believe, a congressional

31:10

committee report that essentially says,

31:17

yeah, he did. So when we say Congress should be

31:18

responsible for these issues, what do we

31:24

mean and what might the court mean?

31:27

Does the court mean Congress is

31:27

responsible for the presidential election,

31:31

whatever that means, but states are

31:31

responsible for state elections?

31:35

Or if folks say Congress is responsible,

31:35

should that mean that Congress should be

31:39

responsible for even state issues?

31:44

That is, should Congress's decision, for

31:44

example, on whether January 6th was an

31:48

insurrection or rebellion, assuming one

31:48

could get an actual decision, should

31:53

Congress be responsible and should

31:53

Congress's action then guide what states

32:00

do? So assume, assume that Congress gets

32:00

together and says, you know what, we

32:05

actually think that January 6th was an

32:05

insurrection.

32:10

Should states be required to take that as

32:10

the truth and merely ask themselves

32:17

whether a candidate, even for a state

32:17

office, was involved in January 6 in a way

32:23

that means that they engaged in

32:23

insurrection?

32:27

Or should the state be able to just decide

32:27

on its own?

32:30

Because it's talking about a pure state

32:30

matter, should they be able to decide on

32:35

their own regardless of what Congress

32:35

decides, whether or not an individual can

32:39

run or not? Now, we know that Congress could decide by

32:40

the 2 thirds vote that the disability is

32:50

removed. So we do know that Congress could bigfoot

32:52

states, even if the Supreme Court said

32:56

that states generally can apply the 14th

32:56

Amendment, Section 3, but could Congress

33:04

bigfoot states without the two thirds vote

33:04

and simply say, nobody who was involved in

33:11

January 6, 2021 shall be deemed to be,

33:11

shall be deemed to have been involved in

33:20

an insurrection. That's going to depend on how the Supreme

33:22

Court writes the opinion, and that's going

33:27

to be fascinating. Yeah, yeah, I mean like do you do you

33:28

think that if Trump had been prosecuted

33:37

You know and a jury found him guilty of

33:37

insurrection that would have Lend lended

33:44

more. I don't know credence to the argument And

33:45

and secondly is you know, so Jack Smith is

33:51

currently investigating Trump's involvement with

33:53

January 6th.

33:56

And if he's found guilty in that, like, do

33:56

you foresee this, I don't know, this case

34:03

being resurrected, if that's even a thing?

34:08

Well, I think one question is...

34:12

How should we deal with the question of a

34:12

jury?

34:17

Which jury?

34:20

Are we talking about a Colorado state

34:20

jury?

34:25

Or are we talking about a Colorado federal

34:25

jury?

34:32

Why should we necessarily believe that...

34:36

I know why I would, but why should one

34:36

necessarily believe that folks would take

34:43

a jury's decision seriously particularly

34:43

given how the president has now gone

34:48

around trashing juries in general? It's a hard thing.

34:53

Now there is the insurrection statute and

34:53

like you say, if one is guilty on the

35:00

insurrection statute, I'd have to look at

35:00

it to see whether a jury's decision alone

35:09

triggers disqualification and whether that

35:09

disqualification should apply nationwide.

35:19

That's that would be an issue and one could see

35:22

the court saying, boy, if we think

35:27

Congress should figure this out, then

35:27

Congress should figure this one out.

35:30

The other piece is what if the, what if

35:30

President Trump was found not guilty after

35:38

being charged with insurrection? And we know he wasn't charged with

35:40

insurrection, but what if he had been

35:42

charged with insurrection and was found

35:42

not guilty?

35:44

Well, we recognize that guilt involves

35:44

proof beyond a reasonable doubt.

35:49

Congressional legislation doesn't require

35:49

that.

35:53

So whether one would say a not guilty in

35:53

an insurrection case means that we are

36:00

required to treat you as though you did

36:00

not engage in the behavior.

36:07

That's an interesting question. As we've seen in other cases, sometimes

36:09

you can be acquitted of a criminal matter,

36:16

but... the same matter comes up in a civil case,

36:16

and folks find that in a civil case, you

36:22

are liable. We saw that, of course, with the O.J.

36:25

Simpson situation, found not guilty of the

36:25

homicides, but when he was sued for

36:30

wrongful death, was found to be liable and

36:30

responsible.

36:34

So that issue is just, I think it's a

36:34

fascinating question.

36:39

It would be nice if the court resolved it.

36:43

rather than in some ways looking for an

36:43

off-ramp or ducking it.

36:47

What I'd like to hear the court talk about

36:47

is why do we think that this language that

36:54

clearly suggests disqualification, if one

36:54

has engaged in insurrection, why that's

37:01

not a straightforward command that the

37:01

courts are supposed to apply it.

37:07

Mm. I haven't really seen that.

37:09

I've instead heard them say functionally,

37:09

we don't want to get involved.

37:17

plaintiff or Colorado tell us why we have

37:17

to get involved.

37:23

And that seems like a flip of what you

37:23

would normally expect when you have

37:27

relatively arguably relatively clear

37:27

language in the Constitution.

37:30

You would think that the court would say,

37:30

okay, we're going to figure out how to

37:34

solve this. Now

37:36

tell us why we shouldn't solve it in this

37:36

way.

37:39

And that just wasn't the feel. I realized that they may get to the same

37:41

place at the end of the day, but that

37:43

wasn't really the feeling that I got when

37:43

listening to the oral argument.

37:48

I guess I got the feeling they didn't

37:48

wanna be involved.

37:51

They'd rather be somewhere else, and by

37:51

God, they were gonna figure out a way to

37:55

be somewhere else. Yeah, you know, side question, are you

37:57

familiar with any of the folks presenting

38:02

the arguments? I don't know them in any real fashion.

38:08

I think they all did a fine job of

38:08

presenting the case given what the court

38:13

had to say. given the questions that the court asked.

38:17

I thought President Trump's lawyer, Mr.

38:20

Mitchell, actually did a really good job. The thing that I think he did the best job

38:22

on, and this is gonna sound kinda goofy, I

38:28

think he actually did the best job on

38:28

rebuttal.

38:30

It was a very short rebuttal, but he

38:30

clearly honed in on the issues that the

38:36

court was worried about and just gave a

38:36

nice sort of end of, yeah, court.

38:43

you should be concerned about those

38:43

issues.

38:45

And in that respect, I think he did a

38:45

really good job.

38:48

But he also certainly did a good job in

38:48

the main as well and largely went where he

38:55

thought he should go. He did kind of brush off Justice Jackson,

38:56

which actually I think it made sense for

39:03

him to brush her off in some respects

39:03

because...

39:09

The argument that was being made that the

39:09

fact that the president wasn't listed in

39:14

the offices, the notion that the president

39:14

wasn't listed meant that he wasn't

39:17

covered, I just find that argument to be

39:17

extraordinarily weak.

39:24

And I'm sort of glad that he didn't go

39:24

forth.

39:30

I hope. and pray that Justice Jackson does not

39:32

write anything regarding that argument in

39:37

the opinion because I think that will be a

39:37

problem for her for her record

39:43

historically. The idea of the president is not included

39:44

in that list of folks who cannot serve.

39:54

That notion seems odd, the idea that you

39:54

would disqualify all those other people

39:58

but would not disqualify the President of

39:58

the United States given how the language

40:02

is written just... It's problematic.

40:06

It's just very problematic. yeah, because maybe you can you can unpack

40:08

that a little bit because from what I

40:12

recall is like They were making the

40:12

argument that You know people in the

40:18

president's cabinet are appointed You know

40:18

the different secretaries are considered

40:26

office holders but But the president is

40:26

elected.

40:32

Um, his cabinet isn't elected. So so can you can you maybe?

40:36

discuss sort of the disparity between

40:36

those two and kind of like why you think

40:41

the president should be considered an

40:41

office holder.

40:44

Sure, sure. So the language, I'll just read the first

40:46

part of section 3.

40:51

It says, no person shall be a senator or

40:51

representative in Congress or elector of

40:57

president and vice president or hold any

40:57

office civil or military under the United

41:02

States or under any state.

41:05

So take that clause. The argument that is being put forth is,

41:07

well they named senators, they named

41:14

They named electors and then they had the

41:14

catch-all officers, right, officer under

41:23

the United States. In fact, it's hold any office, civil or

41:25

military under the United States.

41:30

And the argument that gets made is, well,

41:30

if you wanted the president to be

41:34

included, you should have included the

41:34

president at the beginning of that list.

41:42

And that's what you should have done.

41:44

So the fact that he's not listed is a

41:44

problem.

41:47

Well, the response is, well, it says, hold

41:47

any office civil or military under the

41:53

United States. That includes everybody.

41:59

Now, the argument that folks have made is,

41:59

well, an officer under the United States,

42:06

those are people who are appointed.

42:09

and everybody listed before is someone who

42:09

is elected.

42:14

Now, an interesting argument there.

42:18

One is, that's just not true as of 1868.

42:25

US senators were not elected in the way we

42:25

think of them being elected in 1868.

42:31

They were appointed by the state

42:31

legislature.

42:35

Now, that's not to say that there weren't

42:35

elections, but the group that appointed

42:39

them was the state legislature. So they weren't elected in the way that we

42:41

think of folks being elected.

42:46

By the same token, electors for president

42:46

and vice president, they also

42:54

Sure, they were elected in elections, but

42:54

only because the state legislature said

43:00

the way that we will elect our electors is

43:00

through elections.

43:04

Even as of today, because if you go back

43:04

to 2000 and you see the Bush versus Gore

43:10

decision, the court very helpfully told us

43:10

that the only reason we get to elect the

43:15

electors is because state legislatures say

43:15

that we get to elect electors.

43:21

Back in 1868, it's not the case that it

43:21

necessarily was the case that the people

43:26

were going to elect electors. So the idea that the folks who are listed

43:27

are elected officials and the folks who

43:33

are in the officer category are appointed,

43:33

one, that doesn't really hold water.

43:38

But here's the piece that's far more

43:38

important.

43:42

The folks who are listed by title are

43:42

elected by states or the people of states.

43:51

Hmm. Senators chosen by the state legislature

43:51

which acts for the state in its capacity.

43:58

US representatives are elected by the

43:58

people, but they're elected by people in

44:03

states. Electors are elected by people in states.

44:09

So as a consequence, it makes perfect

44:09

sense to have that list of people.

44:14

None of whom hold federal offices.

44:19

Now we can say, well, but US senators hold

44:19

federal office.

44:22

That's not what we mean. Right?

44:26

Then you have all officers under the

44:26

United States.

44:31

Well, is the president more like the folks

44:31

who are listed in the first piece?

44:36

Or is the president more like those folks

44:36

who are listed in the second piece?

44:41

I'd say the second piece because the folks

44:41

in the second piece are all people who

44:44

hold office under the United States.

44:46

Hmm. The president does not hold office by

44:47

virtue of having been elected by a single

44:52

state. The president holds office by virtue of

44:53

the electoral college.

44:58

So it makes no sense to list the president

44:58

at the head of a list when that list is

45:04

very different from the folks who hold

45:04

federal office.

45:08

Oh. the Secretary of State does not hold a

45:09

federal office as the Secretary of State

45:14

because they've been elected by the

45:14

people.

45:17

No, they hold that office because they're

45:17

working for the federal government in the

45:23

same way that the president holds that

45:23

office.

45:25

So the idea that, well, my goodness, the

45:25

president isn't listed, the president is

45:30

subsumed under the notion of people who

45:30

hold federal office.

45:36

So that's the reason why I look at that

45:36

and I say,

45:39

When you start talking about, well, it's a

45:39

national election, that's how people get

45:43

confused as to why the president doesn't

45:43

seem to be listed.

45:48

The president is listed because the

45:48

president is subsumed under people who

45:54

functionally hold office under the United

45:54

States of America.

45:58

Of course the president is included.

46:01

And the argument that we should pull out

46:01

the president because the president

46:05

somehow is different and the vice

46:05

president somehow different,

46:09

You only get there by continuing to talk

46:09

about national this, national that, and

46:15

thinking that the President and Senators

46:15

and U.S.

46:19

Congress people, well, they're the ones

46:19

who are elected to federal government.

46:22

That's not how it works. And frankly, that's not how folks were

46:25

thinking in 1868.

46:29

either because they had just fought a

46:29

civil war where states were claiming that

46:34

they had the right to secede as states.

46:36

So we understand that the notion was

46:36

states were states and we were a union of

46:42

states. Now we were indivisible and inviolable,

46:43

but we were a union of states.

46:48

When you think about the US as a union of

46:48

states, the way that the list works makes

46:54

perfect sense. And the president as an officer under the

46:55

United States...

46:59

it's just clear and obvious.

47:01

And to say that it's not, you gotta do

47:01

some fancy dancing to say that it's not.

47:06

And that's why I hope that Justice Jackson

47:06

writes nothing along those lines, because

47:11

I just think it's a problem to think of it

47:11

in the way that she's thinking of it.

47:16

And I think there's a reason why she is...

47:19

why she's the only one who kept on pushing

47:19

on that argument.

47:23

Because I think the other folks are like,

47:23

yeah, you could have that one.

47:26

We got plenty of other off-ramps. We don't need that one.

47:30

We'll take a different one. So that's kind of where I'm there.

47:34

And the reason why I'm so animated about

47:34

that is so much of the Constitution is

47:41

written on what I call a chassis of the US

47:41

as a union of states that

47:49

People sometimes get away from that,

47:49

except when they want to prattle on about

47:54

states' rights. Then they find it.

47:58

When Governor Abbott talks about Texas and

47:58

what Texas has a right to do, it's like,

48:02

man, come on. So people can find it when they want to.

48:05

And my deal is, let's just be consistent

48:05

about it and recognize that the language

48:11

of the Constitution is one that treats US

48:11

senators as being from a particular state,

48:16

not as being truly a federal office.

48:19

I know I've been talking for a bit, and

48:19

I'll just make one more point before I let

48:25

you get a word in edgewise, and that's

48:25

this.

48:29

When you think about Nikki Haley.

48:32

and you ask, well, what was Nikki Haley's

48:32

job in the Trump administration?

48:38

Well, she was the US ambassador to the

48:38

United Nations.

48:44

She was our representative to the United

48:44

Nations.

48:50

She was not a United Nations official.

48:54

She's our delegate to the United Nations. That is the mentality.

48:59

that actually underlies how we deal with

48:59

representation to US Congress.

49:07

I realize that we don't think of it that

49:07

way today, but in 1868 and certainly

49:12

before, that's the deal.

49:14

In the same way that if you look at, look

49:14

in the Congressional record, people are

49:21

not listed as just being John Smith.

49:24

They are Senators so-and-so from state.

49:29

Hmm. because we recognize that all of the

49:30

people in Congress come from a particular

49:35

state. We don't have any districts that cross

49:36

state lines.

49:40

People are chosen from states and that's

49:40

what's going on.

49:43

And if you look at that language through

49:43

that lens, then it makes perfect sense.

49:49

So that's kind of the way I look at

49:49

things.

49:52

And I get on my soapbox a lot in voting

49:52

rights.

49:56

Because I tell my students, I say, look,

49:56

we talk about federal elections, please

50:01

don't call them federal elections, please

50:01

call them state elections for federal

50:04

office. Because that's what they are.

50:07

When we elected Tim Kaine and we elected

50:07

Mark Warner here in Virginia, they are

50:14

are U.S. Senator from Virginia.

50:17

That's what they are. We are sending them there.

50:21

And while I believe that we are a nation

50:21

and I believe that we are a country, the

50:25

language of the Constitution doesn't speak

50:25

like that.

50:28

So that's something we have to deal with.

50:30

Yeah, do you think that arguments would be

50:30

different if we were talking about Vice

50:35

President Trump versus President Trump?

50:40

Ironically, the same argument regarding

50:40

president works for vice president as

50:44

well. Now, if the notion is...

50:48

Well, let me ask you, do you mean we think

50:48

that a vice president had engaged in

50:52

insurrection possibly, or do you just mean

50:52

the office of vice president?

50:56

Yeah, that the vice president because like

50:56

it's not I mean the vice president isn't

51:00

like a role that we elect right?

51:02

It's it's chosen Well, yes and no.

51:07

The Electoral College does select the vice

51:07

president separate from the president.

51:13

It's just that they essentially run on a

51:13

ticket.

51:16

But in theory, one could...

51:20

In places where you're allowed to be a

51:20

faithless elector, you could decide to

51:28

vote for someone as vice president who was

51:28

not running with the president themselves.

51:35

I mean, so the structure, that's how the

51:35

structure works.

51:38

Now, practically, it doesn't really work

51:38

that way, but...

51:45

Technically, we do elect the vice

51:45

president.

51:48

But like I say, the president and vice

51:48

president are yoked usually, and as a

51:53

consequence, because they're yoked, we

51:53

think of them as being elected the same

51:56

way. And certainly, the president selects their

51:57

own vice president.

52:00

Some folks will argue, why does the

52:00

president select their vice president?

52:05

Why wouldn't the party? Right, because really, the presidential

52:06

candidates typically are running as

52:13

representatives of a party. It's actually not clear to me why we would

52:16

want the presidential candidate at the

52:26

convention to be the one who selects the

52:26

vice president.

52:29

In theory, we probably ought to say, well

52:29

look, if the Republican party wants X as

52:35

president, then maybe the Republican party

52:35

should be the one that chooses Y as vice

52:39

president. And the notion is, if you're running on

52:40

our ticket...

52:45

If you're running as our nominee, then we

52:45

should be the ones who decide who the vice

52:51

president, who the vice presidential

52:51

candidate is.

52:55

That's not how it has worked, but I think

52:55

that arguably would make a lot more sense

53:01

considering what's actually occurring,

53:01

right?

53:03

In terms of President Trump is, or in 2016

53:03

was the Republican Party's nominee for

53:12

president. And

53:14

Mike Pence was the Republican Party's

53:14

nominee for Vice President.

53:21

interesting in terms of if we changed the

53:21

way we think about that, how we might

53:28

think about the Vice President's position.

53:31

So but no, you raised a good question.

53:35

I think that the language of the

53:35

Constitution treats the President and Vice

53:40

President the same for Article 14, oh

53:40

sorry, for 14th Amendment Section 3

53:45

purposes, in part because it doesn't list

53:45

either the President or Vice President.

53:50

Hmm. So in theory, they should be treated

53:51

exactly the same way.

53:56

Now, there's a slight difference in terms

53:56

of when folks start talking about, well,

54:00

what oath did the president take versus

54:00

what oath did the vice president take?

54:04

But I also find that to be a pretty weak

54:04

argument.

54:10

The idea that the president takes an oath

54:10

to preserve, protect, and defend the

54:14

Constitution, and everybody else takes an

54:14

oath to simply support the Constitution.

54:19

and therefore his oath is different,

54:19

therefore it's not covered.

54:22

That strikes me as being pretty weak

54:22

sauce.

54:27

It's clear that they're talking about

54:27

people who had taken an oath regarding the

54:33

Constitution and that includes people who

54:33

took an oath to support it or the oath

54:37

that the President took to preserve,

54:37

protect, and defend it.

54:40

Frankly, preserving, protecting, and

54:40

defending goes even farther than

54:44

supporting it. But

54:48

Yeah, Vice President and President, I

54:48

think, should probably be treated the same

54:53

for the reasons that you note. They're essentially yoked together. I think that's a good point.

54:57

at it. So Steve Vladek, who looks at Supreme

54:58

Court cases quite a bit, he posted on the

55:07

website, firmly known as Twitter, that he

55:07

thought it was going to be like a 7-2 or

55:12

9-0, kind of in favor of the president.

55:15

I'd love to get your predictions on how

55:15

you think that the court's going to rule.

55:23

Gosh, I would suspect that's probably

55:23

right.

55:29

Now part of it depends on what we mean by

55:29

7290.

55:37

That is, I could easily see nine justices

55:37

saying

55:43

Colorado cannot take President Trump off

55:43

of its ballot.

55:53

I would be a little surprised if they all

55:53

came to the same conclusion as to why and

55:59

what the proper remedy is.

56:04

And here's one of the reasons why is the

56:04

suggestion has been made that given the

56:12

court's position, it seems like what the

56:12

court is angling for is a decision on

56:20

January the 6th, 2025. by Congress regarding whether the

56:23

president has been disqualified by the

56:31

14th Amendment or not. I would be surprised if there's a 9-0

56:35

decision in favor of that being the way we

56:41

figure this thing out. But I have no problem saying all nine

56:43

justices will find an off-ramp to

56:49

guarantee that Colorado can't remove a

56:49

presidential candidate on its own.

56:58

That I could see them saying.

57:01

I'd be surprised. possible 9-0 agreement might be, might be

57:03

if they said well, the fact that Congress

57:13

could remove a disability between election

57:13

day and inauguration day means that you

57:23

have to be allowed to run for president,

57:23

even if at the time you're running you

57:29

technically are disqualified from the

57:29

office.

57:33

Because if Congress can remove the

57:33

disability between election day and

57:40

inauguration day, then you might

57:40

theoretically be able to serve.

57:44

And if you might theoretically be able to

57:44

serve, then we can't stop you from

57:47

running. Maybe it's 9-0 there and the court stops

57:48

there.

57:53

But of course, if the court stops there,

57:53

ooh baby, it does look like there's gonna

57:58

be a lot of pressure between.

58:02

election day and inauguration day if

58:02

President Trump actually won.

58:10

That is, one, you'd have to sort of have

58:10

Congress determine that he couldn't serve.

58:18

Then after determining that he couldn't

58:18

serve, they'd have to remove the

58:20

disability. What's more likely, well what might be

58:21

more likely is folks say, fine, they throw

58:26

their hands up. You can see Democrats throwing their hands

58:27

up and saying, fine.

58:32

If he won, we're just not going to stand

58:32

in the way of him taking office and we're

58:38

never going to have a true adjudication

58:38

regarding whether, we won't have an

58:45

adjudication in addition to Colorado's

58:45

regarding whether President Trump was

58:50

engaged in insurrection or not. That's possible.

58:54

The functional result of that would be

58:54

that.

59:02

the 14th Amendment Section 3.

59:06

is there merely as a suggestion to voters.

59:12

that they not elect someone who's been

59:12

involved in rebellion or insurrection

59:20

rather than a legal command that person

59:20

doesn't qualify.

59:26

And that would be quite interesting.

59:30

Because there's something to the notion

59:30

that that's really what should occur.

59:36

That is, the people should look up and

59:36

say...

59:41

If we think you engaged in insurrection or

59:41

rebellion against the United States, then

59:45

you should not be put back into office.

59:51

we've treated that as being kind of a

59:51

legal thing, but if the court says we are

59:56

not going to raise a finger to enforce

59:56

that, then essentially it turns largely

1:00:03

into a political question, unless Congress

1:00:03

gets explicit about what qualifies as an

1:00:09

insurrection. It's a fascinating result, could be a

1:00:11

fascinating result.

1:00:16

Yeah, if they rule like that, I guess what

1:00:16

happens to the Colorado Supreme Court's

1:00:23

opinion that Trump did engage in an

1:00:23

insurrection?

1:00:26

Does that still stay on the books or

1:00:26

whatever?

1:00:31

How does that fit in? I think it fades away.

1:00:37

Because the notion would be that regarding

1:00:37

presidential candidates, you can't keep

1:00:46

them off the ballot. And if the notion is that you can't keep

1:00:48

them off the ballot because they might be

1:00:54

sworn in later, then

1:01:00

I think functionally it means that the

1:01:00

place where folks figure out what one

1:01:05

should do with a candidate who may have

1:01:05

won the election, but who technically is

1:01:12

not qualified to serve, is the venue just

1:01:12

becomes Congress as the place where they

1:01:18

figure it out. So folks in Congress may say, well, we

1:01:20

refer to what Colorado did, but frankly,

1:01:25

Congress can refer to what its own

1:01:25

committee.

1:01:28

committees reported. But the notion that Colorado would have

1:01:31

the right to make a determination is the

1:01:37

thing that goes by the by.

1:01:40

They wouldn't have the right to make that

1:01:40

determination on their own.

1:01:44

That's why when Justice Kagan said, well,

1:01:44

aren't you essentially asking that a

1:01:48

single state have the right to determine

1:01:48

the presence?

1:01:53

which I got a lot of respect for Justice

1:01:53

Kagan, but that struck me as being an odd

1:01:59

thing to say given that she was alive in

1:01:59

2020.

1:02:06

And I realized that the situation is

1:02:06

slightly different, but the idea that one

1:02:11

state and their determination regarding

1:02:11

who won the election would determine who

1:02:17

in fact won the election, well, that's

1:02:17

what just happened as a matter of

1:02:23

fact in 2020, regardless of how people

1:02:23

come out in terms of which way one should

1:02:28

have gone on that one, Florida made that

1:02:28

determination and some of the

1:02:32

determinations that the government of

1:02:32

Florida made regarding who won the

1:02:37

election in Florida determined who won the

1:02:37

presidency.

1:02:43

So the idea that one state can make that

1:02:43

difference, that well yes Justice Kagan,

1:02:48

that's what the Constitution says.

1:02:51

When we add up the electoral votes, one

1:02:51

state's electoral votes, one flip might

1:02:56

well change the result. That's not a shocking thing.

1:03:01

And more importantly, the way that one

1:03:01

state counts its votes.

1:03:07

So it's not just that, oh, a state's

1:03:07

results could change.

1:03:11

It's the way that a state counts its votes

1:03:11

might determine who wins the election in

1:03:18

that state. and that might determine who wins the

1:03:19

presidency.

1:03:25

So yes, the idea that, oh my goodness, one

1:03:25

state could have, yeah, no kidding.

1:03:30

In the same way that different states have

1:03:30

different requirements for getting onto

1:03:34

the ballot. That is different states allow some, for

1:03:35

example, independence.

1:03:43

Independence have to get themselves on

1:03:43

each state's ballot on their own.

1:03:47

They can't. They can't just show up on a ballot

1:03:48

because they are the nominee of a major

1:03:52

party. So for independents, some of them will be

1:03:54

on some ballots and some will be on other

1:03:57

ballots. And while I recognize an independent has

1:03:58

never come close to winning the

1:04:02

presidency, the idea that a state's rules

1:04:02

regarding who can be on their ballot might

1:04:08

determine who wins the presidency. Yeah, no kidding.

1:04:11

That's what happens when you run 51

1:04:11

separate elections and amalgamate the

1:04:17

results. to determine who wins the presidency.

1:04:20

That's just the way life goes because the

1:04:20

Constitution is written that way.

1:04:24

So I found that to be an interesting way

1:04:24

for her to put it.

1:04:30

I get her point. Her point is, I don't wanna be involved in

1:04:31

this, but the way she put it was one where

1:04:36

you say, huh, that's interesting that you

1:04:36

would put it in that way.

1:04:41

So a lot of real interesting stuff going

1:04:41

on here, but.

1:04:46

I think President Trump will be on the

1:04:46

ballot.

1:04:50

I just don't see any appetite from the

1:04:50

Supreme Court to allow an individual state

1:04:57

to keep him off of their state's ballot.

1:05:00

I just don't see that. And then if they rule that way, does that

1:05:01

mean like the situation in Maine?

1:05:06

Does that go away also? I believe so, yeah, because whether it's

1:05:10

done directly by the Secretary of State or

1:05:17

whether it's done through a trial or what

1:05:17

have you, I think it all goes away.

1:05:23

If the court says, yeah, no individual

1:05:23

state can do this, then I think that's how

1:05:27

it has to work for Maine. The likelihood that you're going to get

1:05:30

any kind of legislation out of Congress is

1:05:34

zero. So...

1:05:36

I don't think there'll be any

1:05:36

congressional movement on this issue.

1:05:41

Clearly, one's not going to bring

1:05:41

insurrection charges against President

1:05:46

Trump between now and the election.

1:05:49

So I think what we're going to have is a

1:05:49

situation that some would view as being

1:05:53

the worst of all possible worlds. That is, a presidential candidate who many

1:05:55

people believe was involved, regardless of

1:06:01

how you get there, many people believe was

1:06:01

involved in an insurrection.

1:06:05

So many people believe that he's not able

1:06:05

to serve, that he's been disqualified by

1:06:10

the Constitution from serving, but he's

1:06:10

gonna be allowed to run and be the nominee

1:06:16

of a major party candidate. Sorry, be the nominee of a major party.

1:06:21

Okay, that would seem to be the worst of

1:06:21

all possible worlds, which is why I think

1:06:27

Colorado Republicans said, figure out

1:06:27

whether this guy's gonna be on the ballot

1:06:31

or not. because I can understand them being afraid

1:06:33

and saying, well, hold on a second.

1:06:37

The last thing we want is for a flawed

1:06:37

candidate who many people may vote against

1:06:44

because they think he can't serve.

1:06:46

That's not who I want the nominee to be,

1:06:46

and I don't want him to be on the ballot.

1:06:51

So figure out whether he's on or off.

1:06:55

Those Republicans might've been happy for

1:06:55

Colorado to say, yes, he's on.

1:07:00

But at least they wanted a decision

1:07:00

regarding is he on or is he not on because

1:07:07

you don't want a candidate whom some may

1:07:07

believe has been mortally wounded.

1:07:13

Well, their candidacy, not the candidate,

1:07:13

but the candidacy has been mortally

1:07:16

wounded by the fact that you do have some

1:07:16

people who are arguing, well, a state

1:07:24

court determined that this guy is not

1:07:24

eligible to serve, so I probably should

1:07:28

vote for somebody else. I understand why one would want their

1:07:30

candidate to be, their nominee to be as

1:07:34

clean as possible. So this might, it might be the worst of

1:07:35

all possible worlds and I guarantee you

1:07:39

the Supreme Court is hoping. After they take their off-ramp, I

1:07:42

guarantee you they're hoping that he does

1:07:45

not prevail. Because if anyone's gonna get blamed for

1:07:47

leaving it until January 6th, 2025, it's

1:07:54

hard not to blame the Supreme Court for

1:07:54

this one.

1:07:58

Unless they give us an opinion that

1:07:58

explains precisely how things should work,

1:08:02

maybe they pick it up and just throw it

1:08:02

into Congress's lap.

1:08:06

That's possible. But I'm not sure that that's going to

1:08:09

work. I'm not sure that saying in February or

1:08:11

early March, hey, Congress, you get this

1:08:17

hot potato, when the Constitution says

1:08:17

what it says, I'm not sure that that's

1:08:22

going to work. if President Trump happens to win

1:08:24

reelection in late 2024.

1:08:29

Got it. So, my last question is more about the

1:08:29

deliberation process of the justices.

1:08:38

So, we all heard the oral argument, we

1:08:38

develop opinions about it, and for most of

1:08:44

us, lay humans, that's all we know.

1:08:48

But will they make decisions based on...

1:08:53

you know, just discussions amongst

1:08:53

themselves, or do they only have to rely

1:08:57

on the oral arguments that we all heard?

1:09:00

They'll talk and there may be a ton of

1:09:00

talk going on because you have some

1:09:06

opinions that are issued as the opinion of

1:09:06

ex-justice and other justices have signed

1:09:16

on so it's the opinion of the court but

1:09:16

written by a particular justice.

1:09:22

You have other opinions that are called

1:09:22

purcurium opinions which are not allocated

1:09:26

to a particular judge. So it's the court saying.

1:09:29

We as a court are issuing this opinion.

1:09:35

And I suspect there may be a lot of talk

1:09:35

because chances are they would prefer to

1:09:41

issue, they'd really prefer to issue a

1:09:41

nine zero per curiam opinion with no

1:09:48

concurrences and no dissents. That's what I'm sure that's what they

1:09:50

would prefer on this issue.

1:09:53

The question is, can you find a rationale?

1:09:57

that all nine are willing to sign on to,

1:09:57

to say we are unanimous in our decision

1:10:04

that this is the way the Constitution

1:10:04

applies.

1:10:08

That will likely take a lot of discussion.

1:10:13

So that I think will be a piece.

1:10:15

Now like I said, you can have a per curiam

1:10:15

opinion that also has dissents involved,

1:10:21

but I suspect that they would prefer that

1:10:21

there be no

1:10:25

concurrences and no dissents. So, yeah, I imagine they may be talking

1:10:27

daily about this issue because this might

1:10:33

be, for right now, this is either the most

1:10:33

important or the second most important

1:10:37

thing they've got to figure out. The immunity piece is the other one that

1:10:39

they've got to figure out.

1:10:43

I guess when should we expect that they

1:10:43

produce something?

1:10:51

I don't know. I suspect sooner rather than later, I

1:10:52

would like to think that they are not

1:10:56

going to hold the decision until after a

1:10:56

couple more primaries in order to see

1:11:04

whether they can dodge this by... I mean, if Nikki Haley were to win the

1:11:05

nomination, then ooh, issue resolved.

1:11:11

At least in theory, issue resolved. I'd like to think that they're not going

1:11:13

to hold that, but it may well be that...

1:11:18

just writing it and getting to consensus

1:11:18

may take some time.

1:11:22

I would like to think that it would be

1:11:22

sooner rather than later.

1:11:26

Because it would be nice for this

1:11:26

particular issue to be essentially put to

1:11:32

bed. But it could take a little while or it

1:11:35

might take, by a little while, I'm

1:11:40

thinking weeks maybe. Not months.

1:11:44

I'd be shocked if it took us.

1:11:48

months, although some might argue who

1:11:48

cares?

1:11:53

That is, who cares until you get past the

1:11:53

primary or at least past the time when

1:11:58

President Trump wins the primary battle,

1:11:58

assuming he does?

1:12:04

Because this really has to do with the

1:12:04

general election.

1:12:06

It doesn't really have to do with

1:12:06

primaries anymore because Colorado's

1:12:10

already printed their ballots and the

1:12:10

lion's share of states are really up

1:12:14

against printing their ballots. So And I don't think that there's enough

1:12:17

stuff going on in those other in those

1:12:20

other states For them to take his name off

1:12:20

the primary ballot.

1:12:23

So I think what we're really talking about

1:12:23

is the general So they could take some

1:12:28

more time for the general But I suspect

1:12:28

that they won't I suspect that they will

1:12:33

make their decision so that People will

1:12:33

have played out what's likely going to

1:12:38

happen and as a consequence Will go into

1:12:38

the general election campaign knowing

1:12:46

that President Trump's gonna be on the

1:12:46

ballot and President Biden's gonna be on

1:12:50

the ballot, and they can just fight it out

1:12:50

during the summer.

1:12:56

Awesome. Well, Professor Chambers, thanks again for

1:12:56

letting me tap into your smarts and your

1:13:02

brain. I feel much more informed, maybe not

1:13:06

necessarily all that more relieved.

1:13:14

But yeah, really appreciate your input,

1:13:14

insight.

1:13:19

And yeah, and to our faithful politics

1:13:19

listeners and viewers, we'll see you next

1:13:24

week. Take care. See you. so much.