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“Disenfranchisement and Chaos”: The Supreme Court Hears Pivotal Case on Whether Trump Is Eligible to Run for President

1 year 6 months ago

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On Feb. 8, the Supreme Court will hear oral arguments in Donald J. Trump v. Norma Anderson et al, a case that could swing a presidential election in a way not seen since Bush v. Gore a quarter-century earlier.

The crux of Trump v. Anderson boils down to this: Should a former commander in chief be disqualified from seeking the presidency again if he engaged in insurrection?

The answer to that question — and even the premise of the question itself — has sparked furious debates among lawyers, law professors and historians. Many of those disputes revolve around two contested subjects: the definition of insurrection, and the true meaning of the 14th Amendment to the U.S. Constitution.

That amendment — passed in 1866 and ratified in 1868 — is probably best known for its first section, which stated that all Americans should receive equal protection under the law. But the amendment’s third section took up a different issue: what to do with former members of the Confederacy who had “engaged in insurrection” — or had given “aid or comfort” to insurrectionists — and now wanted to hold elected office in the government they had fought against.

More than 150 years later, a constitutional fix crafted with Jefferson Davis in mind is being used to argue that former President Trump is ineligible to be president again. There is no clear precedent in the case. The text of the 14th Amendment’s third section is confusing and vague. The range of potential decisions by the high court is vast. But whatever the court decides, the ruling will have enormous implications for American democracy.

How Did We Get Here?

Last September, six Colorado voters — four registered Republicans and two independents — filed a lawsuit that said Trump was disqualified from appearing on Colorado’s 2024 Republican primary ballot because he’d engaged in insurrection on Jan. 6, 2021, and thus, under Section 3 of the 14th Amendment, could no longer seek the presidency.

After months of legal wrangling, the case went before the Colorado Supreme Court. A majority of the panel, in a 4-3 decision, stunned the country by concluding that Trump had engaged in insurrection, that his fiery rhetoric was not protected speech under the First Amendment and that Trump could not appear on the ballot in Colorado’s primary. Shortly afterward, Maine Secretary of State Shenna Bellows issued an order that piggybacked on the Colorado Supreme Court’s decision and ruled that Trump would not appear on the primary ballot in Maine either. Meanwhile, several other states, including California, have determined that he can remain a candidate.

Soon afterward, lawyers representing Trump formally asked the U.S. Supreme Court to consider whether the Colorado court had mistakenly excluded Trump from the ballot. On Jan. 5, the high court agreed to hear the case on a sped-up timetable.

The Colorado and Maine decisions have ignited a debate about the true meaning of the 14th Amendment. They have also put the U.S. Supreme Court in the position of potentially deciding whether Trump can remain on the ballot across the country in the 2024 election.

The 14th Amendment bans insurrectionists from serving as a “Senator or Representatives in Congress,” “electors of President and Vice President,” or in “any office, civil or military, under the United States, or under any State.” There is no direct mention of the presidency. It applies to anyone who took the oath of office to defend the Constitution, including anyone who was “an officer of the United States.” One camp of legal scholars argues that it would be nonsensical and inconsistent with the intent of those who drafted the amendment to say that it excluded the presidency.

Under that logic, the amendment would have banned former Confederate President Davis from running for county clerk or state representative after the Civil War — but not for commander in chief of the country that Davis had tried to overthrow. As one respected scholar, Indiana University law professor Gerard Magliocca, testified in the Colorado case, “It would have been odd to say that people who had broken their oath to the Constitution by engaging in insurrection were ineligible to every office in the land except the highest one.”

Other scholars say the omission of the presidency from the 14th Amendment is so glaring that it can be read as an intentional decision. “It’s very strange to name the Senate and House but not the president,” said Derek Muller, a Notre Dame law professor, characterizing this position. “If you list a bunch of things and you omit one thing, you probably did it on purpose.”

What the U.S. Supreme Court Could Do

When the U.S. Supreme Court agrees to hear a case, the justices sometimes narrow the set of questions to be argued, drilling down on what they see as the core issues. In Trump v. Anderson, the court has not done that, at least not yet. There are as many as seven discrete questions that the court could consider before issuing a ruling.

Those questions include: Did Trump engage in insurrection? Does Colorado law allow for the removal of a candidate from the ballot? Does the 14th Amendment cover presidents?

It’s possible, of course, that the high court affirms the Colorado Supreme Court’s decision, effectively disqualifying Trump from holding the presidency again. Many legal scholars and longtime court watchers say that is the least likely outcome given the consequences such a decision would have for American democracy.

It’s more likely, experts say, that a majority of the justices settle on a narrower decision that results in Trump remaining on the ballot.

Five or more justices could find that the 14th Amendment does not, in fact, cover the presidency. They could say that Colorado law does not give the secretary of state the right to remove Trump from the ballot. They could say the state court’s finding about the meaning of insurrection is incorrect and send the case back to Colorado for more fact-gathering.

Another competing camp of lawyers and law scholars has argued that Congress has a role to play — namely, that it must first pass legislation authorizing the disqualification of a candidate under the 14th Amendment before a court or a secretary of state can remove that candidate, as Colorado and Maine have done. These scholars point to Section 5 of the 14th Amendment, which states that Congress has the authority to enforce the language of the amendment.

“This could be read as a requirement that there be some kind of congressional action before the section goes into effect,” said Samuel Issacharoff, a New York University law professor who has written about the 14th Amendment. Under this theory, Issacharoff said, Congress would need to pass a bill approving the procedure for Trump’s removal from the ballot before a ban could go into effect — a highly unlikely possibility with a Republican majority in the House of Representatives.

But the arguments around Trump and the 14th Amendment don’t break along ideological or partisan lines. Legal scholars have argued that applying the legal philosophies of “originalism” and “textualism” to the 14th Amendment leads to the conclusion that Trump should be disqualified from seeking the presidency again. They especially point to the “aid or comfort” language to argue that Section 3 applies to Trump’s actions on Jan. 6, 2021. All six of the high court’s conservative justices have said that they adhere to such judicial philosophies.

David French, a conservative evangelical lawyer, New York Times columnist and Trump critic, recently wrote that the strongest arguments for applying Section 3 to Trump are “all text and history, the essence of originalism,” adding that “it would not be a stretch for a conservative Supreme Court to apply Section 3 to Trump.”

A Risk of “Catastrophic Political Instability”

What legal scholars do agree on is the dizzying number of possible rulings the Supreme Court could issue given the many questions at play. “If you drew a decision tree with little branches, there are so many permutations here,” said UCLA law professor Rick Hasen.

Most alarming to scholars such as Hasen is the possibility that the Supreme Court rules in a way that doesn’t settle the question of Trump’s eligibility but instead punts that decision to a later date.

The court could say that the 14th Amendment shouldn’t be applied to party primaries, only general elections. If that were to happen, then the same plaintiffs could file a nearly identical lawsuit later this year if and when Trump secures the Republican presidential nomination, arguing that he shouldn’t appear on the November ballot. That would mean the Supreme Court could in theory rehear the case and decide his eligibility after tens of millions of people had voted for Trump in dozens of primaries and caucuses.

“It risks disenfranchisement and chaos,” Hasen said. “Disenfranchisement for all of those people who would vote for a candidate ultimately found to be disqualified, and chaos especially if it gets punted to the political branches.”

In an amicus brief in the Trump v. Anderson case, Hasen, Ohio State law professor Ned Foley and longtime Republican election lawyer Ben Ginsberg lay out a chilling scenario in which the court deferred to Congress on the question of Trump’s eligibility. If Trump were to win the presidential election and Democrats were to win control of Congress, then those Democratic lawmakers could, in theory, vote to disqualify Trump in January 2025 if they believe he engaged in insurrection, as many Democrats have said they do.

“What would it mean for a Democratic Congress to say, ‘Donald Trump can’t serve even though he won?’” Hasen said. “To me, that’s a recipe for potential political violence.”

by Andy Kroll

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Proposed Wage Theft Legislation Would Strip Violators of Their Ability to Do Business in New York

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This article was produced for ProPublica’s Local Reporting Network in partnership with Documented. Sign up for Dispatches to get stories like this one as soon as they are published.

New York lawmakers proposed three new bills last week that would make it difficult for wage theft violators to conduct business in the state.

The legislation would bolster the power of state agencies to crack down on wage theft by stripping violators of their liquor licenses or business licenses, as well as issuing stop-work orders against them.

The legislation was prompted by reports of rampant wage theft against New York workers, including two investigations published by Documented and ProPublica. The stories revealed that more than 127,000 New Yorkers have been victims of wage theft during a recent five-year period, but that the New York State Department of Labor was unable to recover $79 million in back wages owed to the workers.

The stories were based on an analysis of two databases of wage theft violations obtained from the U.S. and New York Labor departments. The databases provided previously unreported details on how much money had been stolen from workers and also shed light on which businesses had committed wage theft.

“We knew from our conversations with labor and from our constituent service caseload that wage theft is a chronic problem,” said Sen. Jessica Ramos, a Democrat who sponsored the legislation. “We did not have the data to understand the scale of the issue in New York state until the ProPublica and Documented series came out last year. Having this reporting as a tool set us up to put this package together and focused our attention on” the capacity of the Department of Labor.

The legislation — dubbed the “wage theft deterrence package” by lawmakers — includes three bills, which are co-sponsored in the State Assembly by Assemblymembers Kenny Burgos, Harvey Epstein and Linda Rosenthal.

The first, S8451, would empower the New York State Liquor Authority to suspend liquor licenses for bars and restaurants that the Department of Labor has determined owe more than $1,000 in back wages to their workers. According to Documented and ProPublica’s analysis, more than $52 million has been stolen from people working in restaurants in New York, more than in any other industry. The amount of back wages accounted for more than 25% of all reported wage theft in the state. Similar measures have been successful in other parts of the country, including Santa Clara County in California, which has recovered $110,000 for workers since 2019.

The second bill, S8452, would enable the Department of Labor to place a stop-work order on any business that has a wage theft claim of at least $1,000. This approach has proven successful in other states, such as New Jersey, which temporarily shut down 27 Boston Market restaurants and eventually recovered more than $630,000 in back wages for 314 workers. Boston Market did not respond to a request for comment.

The third bill, S8453, allows the New York State Department of Taxation and Finance to suspend a business’s certificate of authority — which allows it to collect sales tax and conduct business — in cases where wage theft exceeds $1,000.

The three bills include a provision that allows employers to avoid the punishments if they resolve their wage theft claims within 15 days.

Ramos’ office told Documented and ProPublica that it’s too early to gauge the level of support among other lawmakers for the bills, which were introduced Wednesday. But Ramos and Rosenthal, a Democrat who represents the Upper West Side and the Clinton neighborhood in Manhattan, wield considerable clout in the Legislature, as they chair powerful committees — the Labor and Housing committees, respectively. And the bills have the support from the state Department of Labor, according to Ramos’ office.

“Each year, more than $1 billion is stolen from the pockets of hardworking New Yorkers by unscrupulous employers, often targeting the workers with the fewest resources to fight back,” Rosenthal said. “If businesses refuse to do the right thing and pay their workers what they are owed, New York State should hold them to account.”

The bills were praised by worker advocates and urban studies academics, including James Parrott, director of economic and fiscal policies at The New School’s Center for New York City Affairs. “These bills are needed to put more teeth into New York’s enforcement efforts,” Parrott said. “We owe it to hard-working low-wage workers and law-abiding employers.”

by Marcus Baram, Documented

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