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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm fine. How are you? Actually, I'm confused, but first, how are you?
J. Aughenbaugh: I'm good. I'm doing better than the State of Colorado.
N. Rodgers: That's what I'm a little I was not aware that the Supremes put out decisions where nobody signed it.
J. Aughenbaugh: Oh, okay.
N. Rodgers: That seems weird to me that you can have an anonymous Supreme Court decision.
J. Aughenbaugh: Well, listeners what Nia is talking about here is we are recording this particular in the news episode, breaking news, rip from the headlines.
N. Rodgers: Well, it's actually three days old.
J. Aughenbaugh: It's not that old. Come on. We are recording this the day after the Supreme Court in a 9-0 vote in the case of Trump versus Anderson. That the State of Colorado could not keep former President Trump off of the state's primary ballot. What Nia is referring to is that the majority opinion was per curium, which means in effect that there was no stated author.
N. Rodgers: Per curium by the group.
J. Aughenbaugh: By the group, yes.
N. Rodgers: Because curium is curia, it is the group.
J. Aughenbaugh: It doesn't matter.
N. Rodgers: I think curia is actually another word for body. But anyway.
J. Aughenbaugh: Basically it doesn't happen often, Nia.
N. Rodgers: Okay.
J. Aughenbaugh: But it's sometimes used when the court wants to send a message to the public that the collective of the Supreme Court was in agreement. They're trying to send a message, "Hey, we're not divided on this."
N. Rodgers: Yeah, this is not partisan, this is not a question of the liberal justices or the conservative justices. There's no person that you get to blame. When you're crabby about this, you have to blame us all.
J. Aughenbaugh: A good example was in 1958, Nia, when the Supreme Court in the case of Cooper versus Aaron told the state of Arkansas that it had no choice. It had to desegregate its public schools, and the majority opinion was per curium. They wanted to send a very clear message to the state of Arkansas, "We're not divided on this."
N. Rodgers: All nine of us are going to come down there and make you do this if you don't do it on your own.
J. Aughenbaugh: That would be interesting, but highly unlikely. But yes.
N. Rodgers: Show up in our robes and start doing stuff. There's a lot of things involved and we had talked about this earlier for people who were wondering, "Hey, wait, haven't I heard them talk about this before?" Yes, you have.
J. Aughenbaugh: Yes, in a previous episode.
N. Rodgers: In a previous episode, we talked about whether we thought that Colorado's case would stand. I think we both agreed at that time that we didn't think Colorado's case would stand and the Supreme Court were like, "We liked what Nia and Aughie said and so we're going to go along with it. In my dreams, that never happens. But in fact, we did call it although I called it for a different reason. Mine was just, you shouldn't take away people's right to make a choice. That's like, you eat this broccoli or else rather than I'm giving you a piece of chocolate or a piece of broccoli and you get to decide. You should decide between those two things, I don't get to decide for you what's best.
J. Aughenbaugh: I thought that if the Justices were particularly gutless they would have found a reason to go ahead and say that Colorado or the voters in Colorado didn't have standing or they would have dismissed the case for not yet being ripe.
N. Rodgers: It would totally be administrative route and I went in the vegetable food route.
J. Aughenbaugh: Yes.
N. Rodgers: But either way, we were right in that they found against Colorado, you can't take Donald Trump off the ballot. What I think is interesting about this and maybe you can explain to me why they didn't say, because he hasn't been found guilty in the court of law. No jury has said, "That guy is an insurrectionist."
J. Aughenbaugh: What was fascinating about the decision, and listeners bear with me. I'm going to give you just a really brief recap. There were six voters in Colorado. They brought a challenge to Trump being on Colorado's primary ballot. Colorado is one of 15 states plus one territory that participates in what's known as Super Tuesday. There's 15 states in one territory that have their primary in caucuses on the first Tuesday in March. These voters said, "We don't think Trump should be on the ballot because he violated Section 3 of the 14th Amendment". In our previous podcast episode, we talked about Section 3 of the 14th Amendment. But basically it says, once you swore an oath to uphold the US Constitution but then engaged in insurrectionist activities, then you cannot hold an elected office in the United States. A Trial court concluded that Trump had engaged in insurrection but rejected the voters request because the Trial Court concluded the presidency was not "Office under the United States."
N. Rodgers: Because it is not enumerated in that section.
J. Aughenbaugh: Section 3 of the 14th Amendment.
N. Rodgers: Which enumerates pretty much everything else.
J. Aughenbaugh: Yeah.
N. Rodgers: Dog catcher.
J. Aughenbaugh: Members of Congress.
N. Rodgers: But it left out the presidency. You and I had discussed whether that was omission by woke. The president takes the oath of the office, which is so of course he's included, or no, the president's above all that because we love George and we want him to be a king.
J. Aughenbaugh: Yeah.
N. Rodgers: There is some question about that. Donald Trump's not coming out of nowhere by saying this doesn't apply to me, he actually is coming out of a place of the president's not mentioned in that section.
J. Aughenbaugh: The voters appealed to the Colorado Supreme Court which overturned the trial court's determination. The Colorado Supreme Court said Trump was or isn't eligible to appear on the ballot because they said, one, he is an officer of the United States, and two he engaged in insurrectionist activities.
J. Aughenbaugh: The Colorado Court gave Trump time to appeal to the US Supreme Court. The Court basically just went ahead and focused on one part of this case and the part that they focused on was, did the state of Colorado have the authority to remove a candidate for a federal office? The Supreme Court said no. What all nine justices agreed to was Colorado exceeded its authority in the 14th Amendment Section 3. Basically, the Supreme Court said that only Congress had the authority to declare a federal officer as ineligible to be on state ballots.
N. Rodgers: Can I add two things?
J. Aughenbaugh: Yeah.
N. Rodgers: One, you've been very careful to say federal, so they can hope to take state people off of the state ballot.
J. Aughenbaugh: Yes they can.
N. Rodgers: If I wanted John Aughenbaugh to not run for Governor of Virginia, I could. Well, Virginia doesn't have the same legislature, but we could make that. There's an argument to be made that the state can do that within the state, but not.
J. Aughenbaugh: For state offices. That's correct.
N. Rodgers: Sorry. The other thing that you said there that I'm curious, I just want to clarification, is that because then all 50 states could make that decision and people would be on the ballot in some states and not on the ballot in other states. Look, if you're not on the ballot for president in California, you cannot win the presidency, period. Because of the number of delegates that come out of California.
J. Aughenbaugh: The per curiam opinion forecast gave two reasons why only Congress could remove somebody from the ballot for federal office. One, they focused on Section 5 of the 14th Amendment, which gives Congress the authority to pass laws to implement the first four sections of the 14th Amendment. The per curiam opinion basically went ahead and said, but the notion that the Constitution grants states freer reign than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.
N. Rodgers: I like that. Simply implausible. We should add that to our birge line. Does that make a great thing on a mug? When it simply implausible.
J. Aughenbaugh: Yes, basically what the court was saying in the per curiam opinion was if the 14th Amendment, if its purpose overall was to impose burdens on the states, and pretty much it does, the states have to honor the privileges and immunities of all of its citizens. It has to give equal protection under the law. It has to give due process of law to its citizens. Then the Supreme Court said, that just doesn't make sense if states then can go ahead and use the 14th Amendment to expand their authority to remove candidates for whatever reason for federal office from the federal ballot.
N. Rodgers: I didn't even think of it as a power grab until I read your notes and I'm like, oh yes, the state power grab trying to [inaudible] see what I did there with the skiing?
J. Aughenbaugh: Yeah, I like that. It would be more appropriate as we are recording if we were talking about the states of Nevada and California that have received.
N. Rodgers: [inaudible] the last month and a half or whatever it is, they're going to have a lot of water. At least their reservoirs will get full.
J. Aughenbaugh: The second reason though touches upon what you mentioned just a few moments ago, Nia, where the per curiam opinion focused on the chaos that could result. Because you basically could have one state or a handful of battleground states removing a candidate from federal office, in this case, the president, which in effect would turn the outcome or decide the outcome for presidency. Let's just say for instance, if it was Colorado, Virginia, North Carolina, Pennsylvania, and Wisconsin. All of those states went ahead and declared one of the dominant political party's candidates as ineligible on their ballots. That would in effect, decide the outcome of the election.
N. Rodgers: Or like I said, California with its number of delegates. If it took you off the ballot, you could, you should just go home and take a nap. If Florida and California both removed you, you wouldn't even be. You could win all 48 other states and every territory we have, and you still would not get anywhere near.
J. Aughenbaugh: Listen, I was thinking about if California, Texas, Florida, and New York all agreed to remove the same candidate.
N. Rodgers: That's what would happen to the candidate. They would poof out of existence. The likelihood is that those four states would not agree on breathing air, let alone review the candidate. But [inaudible] them could put quite a large dent in your ability to. Then you'd have to pick up a lot of other states because of the way the Electoral College works.
J. Aughenbaugh: The per curiam opinion went ahead and also reminded the states, or they reminded the political parties. Even if you agreed with what some states did in a given federal election, think about what could happen if states controlled by the other political party did the exact same thing in the future. We talked about that in the previous podcast episode.
N. Rodgers: Joe Biden is under investigation by the House. For some states that would be enough to remove him from the ballot. Now you've got a situation where some people can't vote for Trump and some people can't vote for Biden. It turns into a mess. Were there any justices who were particularly crabby about this publicly?
J. Aughenbaugh: Before we get to the crabby justices, and there were four that were. I want to note for the readers that the Supreme Court, none of the justices, none of the nine, went ahead and focused on two issues that seemed to be the focus of the Colorado Courts. One, the Supreme Court never addressed whether or not Trump's behavior was insurrectionist. Didn't even touch it.
N. Rodgers: They're waiting for that particular lawsuit to answer that question. That's not the question they were trying to answer.
J. Aughenbaugh: We're trying to be right.
N. Rodgers: Didn't former President Trump's lawyers ask them to answer that question and they politely declined. Sorry, that's not our remit.
J. Aughenbaugh: What Trump's lawyers focused on was, Trump was not an officer. The Colorado Courts focused on that quite a bit. The Trial court said, no, he's not. The Colorado Supreme Court said, oh, yes he is and the United States Supreme Court said, well, that's an interesting conversation piece, but we're not addressing that.
N. Rodgers: Then US Supreme Court said, look, they're dactyl and they pointed in a different direction. But the question will eventually have to be answered, don't you think? I think this door has been opened.
J. Aughenbaugh: I think at some point in time, the United States Congress is going to have to weigh in. The United States Congress is going to have to pass some legislation and they're going to have to convince a President to sign it. Where the President is considered an officer. Or they could just go ahead and pass the 28th Amendment that provides clarity on both what is an insurrection and whether or not the President is an officer. Now, the chances of that happening in our lifetime unless the hyper partisanship of the day changes is slim and none. Let's face it.
N. Rodgers: Unless I'm dictator, in which case I'll face it. But I would like to note for the record that I watched Donald Trump take the oath of office, and I've watched every President in my lifetime do that. In my adult lifetime, I didn't watch them when I was a kid. I consider that to be you're now an officer of.
J. Aughenbaugh: Well, the presidential oath is different than the oath taken by almost every other government official in the United States.
N. Rodgers: But you still promise to uphold the constitution.
J. Aughenbaugh: I get that. But again, we're talking about the law and wordsmithing is the coin of the day. We're lawyers.
N. Rodgers: That makes crabby.
J. Aughenbaugh: Speaking of crabby. There were two concurring opinions. One was written by Justice Coney Barrett, and then another one was written by the Troika of liberal Justices Sotomayor Kagan and Jackson. Coney Barrett basically, her concurring opinion was one page, and she basically said, all we had to do and all we should do is hold that states cannot enforce Section 3 against presidential candidates. Boom, stop, done.
J. Aughenbaugh: She then said, "The court should not have weighed in on the complicated question of whether or not only federal legislation is the exclusive vehicle through which Section 3 can be enforced." That's a direct quote. Because the per curium opinion basically says Congress has to pass a law like it did in 1870, when they wanted to go ahead and preclude a particular US Senatorial candidate.
N. Rodgers: She said, "That's not the question we've been asked and we don't need to be answering questions we have not been asked."
J. Aughenbaugh: Yes. But then, not only did she criticize the per curium, then she criticized the other concurring opinion or being strident in its tone, and that the court should turn the national temperature down, not up.
N. Rodgers: Is that a quote from it? She turned the national temperature down, not up?
J. Aughenbaugh: Yes.
N. Rodgers: Was she there for the Dobbs decision? Because that turned the temperature up pretty high. I'm just saying, the court occasionally doesn't care about the temperature. They're like, "Hey, what's this button do? Oh, it pushes the temperature up? Here, give it to me."
J. Aughenbaugh: Again, if not for hypocrisy, there would be no standard.
N. Rodgers: Well said. Well, it's getting all snarky about the other women on the court. You'll need to keep the temperature down.
J. Aughenbaugh: Well, you could also apply the hypocrisy charge to the other concurring opinion because they went ahead and said, "We agree with the outcome, we don't agree with the reasoning", and they basically accuse the Court of doing what Cornie Berg accused the rest of the justices of doing. Which is basically addressing a constitutional question that was not at issue. But mind you, the liberals used to do that all the time in the 1950s, '60s, and '70s. They would use a case.
N. Rodgers: That's how they moved things progressively.
J. Aughenbaugh: Yeah, that's how they changed the law. They would use a case as a vehicle to go ahead and make the changes they wanted.
N. Rodgers: So it's a little rich for them to be.
J. Aughenbaugh: Sure it is. Come on now, I point this out all the time when I teach constitutional law. But that was the heart of the second concurrence. They have an issue with the per curiam opinion saying that only federal legislation, not a federal court case, not a resolution by Congress, only a law passed by Congress, can enforce Section 3 of the 14th Amendment.
N. Rodgers: Which will never happen.
J. Aughenbaugh: Oh my God, no.
N. Rodgers: For a very selfish reason, a huge number of people in Congress contemplate a presidential run at some point.
J. Aughenbaugh: Sure.
N. Rodgers: They don't want to run the risk of their colleagues pointing to a law and saying, you have committed whatever under this law and you can't be president, or you can run for president. Because you always run for president. You can run for president when you're not on the ballot. "Hey, write me in." Lisa Murkowski did that and won back her Senate seat in Alaska. No, she wasn't on the ballot but she ran and got written in it. I have a brief question about technicality. We are recording this on Super Tuesday, March 5th. Is Donald Trump appearing on the Colorado ballot?
J. Aughenbaugh: Yes.
N. Rodgers: So the judge that said he doesn't have to appear on the ballot also said or somebody above them said, "But you have to put him on until this question is settled."
J. Aughenbaugh: The ballots were already printed.
N. Rodgers: Okay. It's pretty safe for him to do this case in Colorado?
J. Aughenbaugh: Yeah. The ballots were already printed in Colorado.
N. Rodgers: Let's be honest, he wasn't going to carry Colorado. He might carry it over Nikki Haley, who, bless her heart, lost in Nevada to none of these choices.
J. Aughenbaugh: None of the above or none of these choices.
N. Rodgers: Which is sad.
J. Aughenbaugh: But the likelihood in November that Trump will win Colorado isn't all that great. On the other hand, may I remind listeners that in 2016, it was expected that Trump would not win the states of Pennsylvania and Wisconsin, and he pulled out both.
N. Rodgers: Right. You can never predict how sets are going to go like. These days, I wouldn't be upholster for love nor money because it is so hard to [inaudible] with his tie off and sweat pouring off of him and trying to figure out the board. No, thanks. What does this mean overall? What's the final?
J. Aughenbaugh: First of all, in very practical terms, Trump will be on the ballot in all 50 states come November.
N. Rodgers: Because Maine's going to have to put him back on too, for the same reason.
J. Aughenbaugh: Also Illinois, and again we're recording on March 5th. Last week, the Illinois judge went ahead and removed him for the same reason as did Colorado and all those states that have basically said Trump is an insurrectionist and he's prohibited by section 3 of the 14th Amendment, all of your state court rulings have been superseded by the Supreme Court saying you don't have the authority to do this. He's going to be on the ballot. Does it mean that he's won? No. As we just got done discussing, we're recording in March. The election is not until November, there's another eight months.
N. Rodgers: It seems to get even weirder.
J. Aughenbaugh: Yeah. The court was very clear, and again, I cannot emphasize this enough. All nine justices, so the six conservatives and the three Liberals all agreed that what Colorado attempted to do was unconstitutional. So going forward, we now have a precedent.
N. Rodgers: To shot across the bow for the states, "Hey, stay in your lane."
J. Aughenbaugh: Yeah. Is that when it comes to federal offices, only Congress can use section 3 of the 14th Amendment. But the other thing I want to remind listeners the ruling in this case is a good example of federalism. Because the federal government determines, if you will, the rules in regards to federal office elections. We know this. The federal constitution says if you want to run for president, you have to be a certain age, you have to be a US citizen or a natural born citizen. If you want to run for the house, certain age. You got to live in the district in which you are running for that office.
N. Rodgers: Which is a whole separate thing that we'll do another in the news at some point. Random people just not living in their district, like, what are you?
J. Aughenbaugh: Lauren Probart earlier this year, changed residences because her district in Colorado got gerrymandered. She went from more than likely losing in a re-election to now being in a district to where she will easily get the Republican Party primary not [inaudible] , and she has a realistic shot of keeping A seat in the house, because it's a different district now. But She moved, right?
N. Rodgers: Yeah. There's a guy in Texas who owns a house in Arkansas and nobody can figure out where exactly he's living and, it happens with people. Can I just say, you've got to be quite a certain kind of person to uproot your family and move them to another place so that you can keep a seat in the Congress or the Senate.
J. Aughenbaugh: Yeah. I'm aware of members of the house who moved three or four times in their career because of redistricting. But this ruling is a good example of federalism. Because in other countries that have democracies, where you have a strong central government that controls everything about elections, you wouldn't have a region or a state or province attempting to do what Colorado did. But the Supreme Court made it very clear and NIU emphasizes this about 10-15 minutes ago, "States can go ahead and use state laws and state constitutional provisions to remove candidates from state ballots for state offices."
N. Rodgers: Just not federal offices. Although that's a whole separate question, and we should talk about the fairness of that other question some other time and I'm certain it will come up in the news.
J. Aughenbaugh: Yeah. But anyways, there you have it listeners, Trump will be on the ballot. We have other podcast episodes planned where we'll talk about other aspects.
N. Rodgers: Of Donald Trump's legal travails.
J. Aughenbaugh: Legal and constitutional travails. Thanks Nia.
N. Rodgers: Thank you, Aughie.