Trump critics hope Antonin Scalia can sway Supreme Court in 14th Amendment fight

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Trump critics hope Antonin Scalia can sway Supreme Court in 14th Amendment fight

Oral arguments will take place next week in the blockbuster case that will determine whether Trump can run for president again

Trump’s critics hang their argument on a caveat

Other conservatives have reacted sharply to Scalia’s interpretation.

Liberal groups hoping to keep former President Donald Trump off the ballot for his role in the attack on the US Capitol on January 6, 2021 are turning to a surprising source as they make their case to the Supreme Court: the late Justice Antonin Scalia and many of the court’s current conservatives.

Forces opposing Trump are citing a 2014 concurring opinion by Scalia, a hero of the conservative legal movement who died in 2016, as evidence that the 14th Amendment’s “sedition restriction” applies to former presidents – And not just ordinary federal officials.

The blockbuster case will decide whether Trump can run for president again. Oral arguments are scheduled for next Thursday.

In a court where conservatives have a 6-3 majority, including three of Trump’s nominees, Scalia’s citation is no coincidence. Advocates are hoping to convince the judges that they can reject Trump’s arguments in a way that is still consistent with conservative legal principles.

Notre Dame Law School professor Derek Mueller, an expert on the case, said, “Invoking Scalia is an attempt to cite some moral authority for one of the Court’s great originalists.” “They’re not just citing anyone.”

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Trump claims that the president is not an “officer” of the United States – a term used in the 14th Amendment after the Civil War – and therefore the ban does not apply to him. Instead, he argues, the term “officers” is meant to capture officers who are appointed by the President, take an oath to uphold the Constitution and then join the insurrection.

His opponents, including both liberal groups and several former Republican officials, balked at his reading of it in a series of “friend of the court” briefs filed Wednesday.

“The plain text demands” that the amendment apply to former presidents, the Center for Constitutional Accountability, a progressive legal advocacy organization, told the justices in a brief that cited Scalia. Historically, the group wrote, “officials in every branch of the government refer to the President as an officer of the United States.”

Former conservative appellate judge J. Michael Luttig, who has become a vocal critic of Trump, also cited Scalia in a brief to the court this week.

Scalia’s concurrence included Chief Justice John Roberts and two other conservatives, which involved a dispute between the Teamsters and a soda distributor. The late judge wrote that all “officers” of the United States “must be appointed by the President” except where “the Constitution” otherwise provides.

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Trump’s critics base their argument on this warning.

Scalia’s explanation drew further criticism from other conservatives, notably South Texas College of Law Houston professor Joshua Blackman, who is expected to participate in the debate next week — to explain his study on Scalia’s opinion. Is. The late judge wrote the letter weeks later.

Blackman believes it would be a mistake to view Scalia’s brief language as a definitive statement about his position in the concurrence and letter.

Blackman said, “Part of the problem with this case is that people are litigating this issue in blogs and law review articles that have not been peer-reviewed.” “There are substantial problems with some of these arguments.”

The Scalia concurrence is an example of anti-Trump lawyers highlighting past statements by the court’s conservatives to counter the former president’s arguments.

Supreme Court Justice Antonin Scalia and former President Donald Trump.

Others have drawn attention to an opinion Justice Neil Gorsuch wrote in 2012 when he was a judge on the 10th U.S. Circuit Court of Appeals. Gorsuch wrote that states were allowed to exclude candidates from the ballot if they were constitutionally ineligible to serve in the office they sought.

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Although not mentioned in the recent brief, a case last month indirectly hits on one of the more technical questions in the Colorado ballot dispute: whether certain constitutional provisions can be enforced on their own (known as “spontaneous -known as “execution”) or whether they require it before Congress passes a law. The Colorado Republican Party argues that the anti-insurrection clause in the Colorado case requires Congress to take the first step.

During the January 16 debate on whether states can be sued directly when the government takes private property, Justice Samuel Alito, a conservative, asked tough questions of both sides, but at one point raised concerns about the constitutional right. Questioned the necessity. A law of Congress.

Alito said, “It seems like a very weak right if … it’s subject to limits like that.”

Whether references to such past statements will have an impact on the court is an open question.

“Many times, members of the court have great respect for each other but will disagree on what they have to say,” Mueller said. “But for public consumption, it can certainly be persuasive.”