I'm eagerly awaiting your review of Paulsen & Baude's arguments. I haven't read their paper either, but their conclusions naively seem plausible to me... but then, the vagueness you reference about potential "insurrections" during the Floyd riots would be concerning.
Also, are you by any chance considering filing that suit yourself?
Not me, I think. Even if Baude and Paulsen convince me in the end, I have neither $550 handy nor the courtroom experience needed to succeed.
But there's six million people in this state, and one of them is Professor Paulsen himself. Somebody out there has the tools to litigate this. (And, as I said, I think it's beneficial to the GOP as well as the opposition to get this litigated sooner than later.)
Sep 1, 2023·edited Sep 1, 2023Liked by James J. Heaney
The legal case to disqualify Donald Trump sounds convincing to this layman. But the "self-executing" claim seems dubious. If the secretary of state of any state were to disqualify Trump from the ballot on Section 3 grounds, a court case would immediately result. And that hearing would likely center on the facts of Trump's actions before and during January 6, 2021 and whether or not they constitution an "insurrection" since trump has not (yet) been convicted of any January 6 crime.
That is (and in the absence of that criminal conviction) an evidentiary hearing would have to be held. Can such a hearing be held in the absence of a law implementing Section 3? In the absence of such a law, a negative result would likely be appealed at every step, probably all the way to SCOTUS.
There is another consideration. There is already a possibility of political violence if Trump loses, even on the ballot in all 50 states. If he is removed from the ballot especially in a battleground state (even if a concerted effort is made to do so) -- look out.
None of which is to say Trump should be on the ballot. He should not. But it would take more than a long-dormant section fo the Constitution to keep him off.
Yes, if Section 3 is self-executing (I still haven't read Paulson and Baude's paper), that hearing could absolutely be held. That's what it means for a section to be self-executing: it can be applied by itself even without any other law. In the same way, if someone was keeping someone else enslaved on 19 December 1865, he could be prosecuted under the Thirteenth Amendment without any other law because the Thirteenth Amendment was self-executing.
Yes, unfortunately, this might result in political violence. (And, indeed, in more "insurrections" disqualifying more people.) The Thirteenth Amendment did, too. That should motivate people to be more careful, but that doesn't and shouldn't change the law.
Yes, you have it right. The Minnesota Supreme Court would have to hear adversarial arguments as to whether or not President Trump participated in "engaged in insurrection or rebellion against the Constitution of the United States," and, yes, any decision would likely be appealed. We could end up with a national answer to this question.
The way I see it, the sooner there's a national answer to this question, the better. If small insurrections (you know, as a treat) don't count, I would like to have that in black and white. (I suspect that so, too, would the people who violently besieged the Portland federal courthouse for weeks in 2020.)
I am done with suspending laws because of how people -- on either side of the aisle -- react to having laws enforced. If they don't want to live in a nation of laws, they may attempt to bring a state of lawlessness about, and they may succeed. You're absolutely right that this is very scary, and I've written about that. But De Civitate's motto has always been and will probably always be: "And when the last law was down, and the devil turned 'round on you, where then would you hide, Roper, the laws all being flat?" So, yes, you're right, but, at the same time, oh well.
So now I have actually read Paulsen-Baude's paper. They've convinced me on ~99% of their Constitutional reasoning: Section 3 does remain in force today, is self-executing, and does apply beyond those who take up arms. I'm dubious about some of the expansive scope they argue for based on things like Lincoln's letters, but the more definite scope is already quite sweeping.
What I object to is when they try to apply this to January 2021. They're right that someone could be disqualified for supporting the Confederacy even if he thought secession legal, but that's different from disqualifying everyone who supported Trump's legal schemes even if they thought his arguments were correct. (Much less alternate electors - they're an established legal practice, dating back to 1960 Hawaii if not 1876 Louisiana!) Arguments within the system are different from arguments outside the system.
This's a very interesting debate, and I'm looking forward to hearing more... or at least I would be if it wasn't threatening such worrisome consequences to our divided country.
There is a lot I want to say about this, but I can't right now, because... reasons.
Just wanted you to know that I'm not ignoring your comment (or this thread) for the next couple of weeks. Indeed, I've thought of precious little else.
“If that list contains the name Donald Trump”… do us laypeople get to see the lists that get submitted?
Also, you say that this must be done quickly in January to prevent Trump’s name on the ballot but wouldn’t that only be true IF the goal was to remove his name from the primary ballot? Any submission between the primaries and the general elections would eventually do the job (providing the logic and legalize presented here is valid) of making sure DTrump is not elected as the preferred candidate from Minnesota
It's not a secret or anything, and it's immediately shared with about a zillion people in state and county government involved in ballot printing... but I don't THINK the SecState office goes out of its way to make it readily available by, like, posting it online or anything. I am actually not sure how to obtain the list the day it's sent, unless a newspaper reports on it or you just pester his staff via email a bunch.
Oh, and your other question: yeah, I think so, and that's just what I think the DFL would have done if someone hadn't filed at primary time.
As a conservative, a worst-case scenario for me is something close to "the Republicans nominate someone and then he's DQ'd from the ballot in, like, September." It is therefore highly preferable to me to have this litigated during the primary.
I'm eagerly awaiting your review of Paulsen & Baude's arguments. I haven't read their paper either, but their conclusions naively seem plausible to me... but then, the vagueness you reference about potential "insurrections" during the Floyd riots would be concerning.
Also, are you by any chance considering filing that suit yourself?
Not me, I think. Even if Baude and Paulsen convince me in the end, I have neither $550 handy nor the courtroom experience needed to succeed.
But there's six million people in this state, and one of them is Professor Paulsen himself. Somebody out there has the tools to litigate this. (And, as I said, I think it's beneficial to the GOP as well as the opposition to get this litigated sooner than later.)
The legal case to disqualify Donald Trump sounds convincing to this layman. But the "self-executing" claim seems dubious. If the secretary of state of any state were to disqualify Trump from the ballot on Section 3 grounds, a court case would immediately result. And that hearing would likely center on the facts of Trump's actions before and during January 6, 2021 and whether or not they constitution an "insurrection" since trump has not (yet) been convicted of any January 6 crime.
That is (and in the absence of that criminal conviction) an evidentiary hearing would have to be held. Can such a hearing be held in the absence of a law implementing Section 3? In the absence of such a law, a negative result would likely be appealed at every step, probably all the way to SCOTUS.
There is another consideration. There is already a possibility of political violence if Trump loses, even on the ballot in all 50 states. If he is removed from the ballot especially in a battleground state (even if a concerted effort is made to do so) -- look out.
None of which is to say Trump should be on the ballot. He should not. But it would take more than a long-dormant section fo the Constitution to keep him off.
Yes, if Section 3 is self-executing (I still haven't read Paulson and Baude's paper), that hearing could absolutely be held. That's what it means for a section to be self-executing: it can be applied by itself even without any other law. In the same way, if someone was keeping someone else enslaved on 19 December 1865, he could be prosecuted under the Thirteenth Amendment without any other law because the Thirteenth Amendment was self-executing.
Yes, unfortunately, this might result in political violence. (And, indeed, in more "insurrections" disqualifying more people.) The Thirteenth Amendment did, too. That should motivate people to be more careful, but that doesn't and shouldn't change the law.
Yes, you have it right. The Minnesota Supreme Court would have to hear adversarial arguments as to whether or not President Trump participated in "engaged in insurrection or rebellion against the Constitution of the United States," and, yes, any decision would likely be appealed. We could end up with a national answer to this question.
The way I see it, the sooner there's a national answer to this question, the better. If small insurrections (you know, as a treat) don't count, I would like to have that in black and white. (I suspect that so, too, would the people who violently besieged the Portland federal courthouse for weeks in 2020.)
I am done with suspending laws because of how people -- on either side of the aisle -- react to having laws enforced. If they don't want to live in a nation of laws, they may attempt to bring a state of lawlessness about, and they may succeed. You're absolutely right that this is very scary, and I've written about that. But De Civitate's motto has always been and will probably always be: "And when the last law was down, and the devil turned 'round on you, where then would you hide, Roper, the laws all being flat?" So, yes, you're right, but, at the same time, oh well.
So now I have actually read Paulsen-Baude's paper. They've convinced me on ~99% of their Constitutional reasoning: Section 3 does remain in force today, is self-executing, and does apply beyond those who take up arms. I'm dubious about some of the expansive scope they argue for based on things like Lincoln's letters, but the more definite scope is already quite sweeping.
What I object to is when they try to apply this to January 2021. They're right that someone could be disqualified for supporting the Confederacy even if he thought secession legal, but that's different from disqualifying everyone who supported Trump's legal schemes even if they thought his arguments were correct. (Much less alternate electors - they're an established legal practice, dating back to 1960 Hawaii if not 1876 Louisiana!) Arguments within the system are different from arguments outside the system.
This's a very interesting debate, and I'm looking forward to hearing more... or at least I would be if it wasn't threatening such worrisome consequences to our divided country.
There is a lot I want to say about this, but I can't right now, because... reasons.
Just wanted you to know that I'm not ignoring your comment (or this thread) for the next couple of weeks. Indeed, I've thought of precious little else.
“If that list contains the name Donald Trump”… do us laypeople get to see the lists that get submitted?
Also, you say that this must be done quickly in January to prevent Trump’s name on the ballot but wouldn’t that only be true IF the goal was to remove his name from the primary ballot? Any submission between the primaries and the general elections would eventually do the job (providing the logic and legalize presented here is valid) of making sure DTrump is not elected as the preferred candidate from Minnesota
It's not a secret or anything, and it's immediately shared with about a zillion people in state and county government involved in ballot printing... but I don't THINK the SecState office goes out of its way to make it readily available by, like, posting it online or anything. I am actually not sure how to obtain the list the day it's sent, unless a newspaper reports on it or you just pester his staff via email a bunch.
Oh, and your other question: yeah, I think so, and that's just what I think the DFL would have done if someone hadn't filed at primary time.
As a conservative, a worst-case scenario for me is something close to "the Republicans nominate someone and then he's DQ'd from the ballot in, like, September." It is therefore highly preferable to me to have this litigated during the primary.