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Thoughts on the Supreme Court Oral Argument in the Trump Section 3 Case

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Today’s Supreme Court oral argument in Trump v. Anderson overwhelmingly focused on the issue of whether Section 3 of the Fourteenth Amendment is “self-executing,” that is whether states can enforce it in the absence of congressional legislation. Most of the other issues at stake in the case got little or no attention. For example, there was almost no discussion of the question of whether the January 6 attack on the Capitol was an “insurrection” and whether Trump “engaged” in it.

Both liberal and conservative justices repeatedly raised questions about whether letting states enforce Section 3 would lead to a lack of uniformity, and whether states could abuse their authority by trying to disqualify people for political reasons. Given the extensive focus on this issue and the relative neglect of others, there is a good chance that the Court will overrule the Colorado decision on that basis. Strikingly, the questioning focused much more on pragmatic concerns about chaos and abuse than on more traditional legal issues about the text, structure, and original meaning of Section 3. The self-execution question may also appeal to the justices because it is an “off ramp” that would allow them to dispose of this hot potato without having to pass judgment on the nature of the January 6 attack on the Capitol…



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