A rule meant to expel separatist rebels from politics after the U.S. Civil War is now being invoked to determine the fate of Donald Trump.
Section 3 of the U.S. Constitution’s 14th Amendment bars people from holding office if they ever engaged in insurrection or rebellion after swearing an oath as an officer of the U.S.
Now the U.S. Supreme Court is poised to be asked to make one of the most momentous constitutional decisions in American history: whether this bars the Republican presidential front-runner from running for president.
This comes after a state court found the leading candidate in most presidential election polls, Trump, ineligible to run for office after he inspired a mob to attack the U.S. Capitol on Jan. 6, 2021, in an effort to halt the transfer of power to Joe Biden.
“It is an extraordinary historical moment,” said Richard Friedman, an expert on constitutional law and the history of the Supreme Court at the University of Michigan.
“A major candidate for president has just been held ineligible to be on the ballot.”
Friedman was referring to the groundbreaking ruling on Tuesday by the Colorado Supreme Court that ordered Trump removed from the state’s primary ballot, in a move that’s hypothetical for now: The court paused enforcement of the decision to give the U.S. Supreme Court a chance to weigh in.
The nation’s top court will be pressed to consider every angle of that above-mentioned amendment from 1868: What is an officer? What is an insurrection? What does it mean to be engaged in one? And who gets to make that determination?
‘Uncharted territory’
In their ruling, the Colorado judges made clear their own awareness that they were doing something unprecedented.
“We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the court said in its decision.
“We are likewise mindful of our solemn duty to apply the law, without fear or favour, and without being swayed by public reaction to the decisions that the law mandates we reach. We are also cognizant that we travel in uncharted territory.”
Trump’s political future may hinge on U.S. Supreme Court decision
The United States Supreme Court is expected to hear an appeal of a Colorado Supreme Court ruling that Donald Trump is ineligible to run for the presidency because he participated in an insurrection. The court’s decision on the matter could determine whether other states will opt to bar him from running.
The potential implications of this decision are akin to lobbing a gas canister into the already combustible political environment of the moment.
Almost immediately, Fox News was running a headline across its screen: “Targeting The Frontrunner.” Trump was quickly fundraising off the news. He sent supporters a message calling this the greatest constitutional travesty in American history and vowed to never surrender.
In terms of electoral politics, the case has no immediate impact; Colorado’s ballot will not change for now and, even if it does, it’s unlikely to decide the election, as no Republican has won Colorado in 20 years.
But other states are watching.
A tracker at Lawfare, a legal blog, lists about a half-dozen key states where cases like this are percolating, places vital to Trump’s election chances — like Michigan, Wisconsin, Arizona and Texas; in several states, courts have rebuffed cases like this, but appeals are pending.
5 potential outcomes at top court
Constitutional experts interviewed by CBC News outlined five potential outcomes if, as expected, the Supreme Case takes up the case.
Trump’s electoral prospects are already, to a certain degree, before the high court.
Justices will hear cases that could determine the timing of at least one Trump trial and potentially address an important question: whether a case against Trump will proceed before the presidential election in November 2024.
The U.S. Supreme Court in Washington, D.C., is shown in November. Trump is expected to appeal this week’s Colorado court ruling, which ordered the former president removed from the state’s primary ballot, to the country’s top court. (Mariam Zuhaib/The Associated Press)
Legal scholars interviewed by CBC News described five potential outcomes in this extraordinary case.
Possibility No. 1: The Supreme Court upholds the Colorado ruling.
“Absolutely fatal [for Trump],” said Amanda Shanor, an assistant professor of constitutional law and a scholar of free-speech issues at the University of Pennsylvania’s Wharton School. “If the plaintiffs prevail in the Supreme Court, he will not be president.”
At the very most for Trump, the University of Michigan’s Friedman said, there could be court challenges in other states where Trump allies argue the court decision for Colorado doesn’t apply to their electoral law.
“An earthquake” is how this scenario was described by Julian Davis Mortenson, a scholar of the Constitution and the U.S. presidency at the University of Michigan.
“He would soon be disqualified everywhere. Except for places that engaged in judicial disobedience.”
‘There’s still an out’ for Trump
A second possibility would see a narrow ruling against Trump. In this scenario, the court would uphold the Colorado ruling but argue that it’s specific to the exercise of electoral law in that state and doesn’t apply elsewhere. Shanor called this scenario extremely unlikely, as it involves a national question about a fundamental constitutional issue.
A third possibility: a procedural escape hatch. The court strikes down the Colorado decision on procedural grounds and entirely ignores the substance of the case — an off-ramp for the judges, if you will.
“There’s still an out,” Mortenson said. “They can declare it a political question.”
Supporters of Trump, who is the front-runner in the race to be the Republican presidential nominee, are shown at a rally in Durham, N.H., on Dec. 16. (Brian Snyder/Reuters)
He’s referring to the political question doctrine in which judges can declare an issue as so fundamentally political that they have no business interfering in it. The court once laid out six factors in determining what qualifies as a political question.
It’s fuzzy and unevenly applied — and it’s not always clear where the line stands, as virtually any constitutional case will have a political dimension to it. Case in point: The Bush v. Gore case that may have decided the 2000 election was not dismissed as a political question.
In Mortenson’s view, this is the likeliest way Trump walks away from this case.
The court could declare this a political question and would, in that case, almost certainly make clear that its judgment invalidated the Colorado ruling, he said.
A fourth possibility: a punt. In this scenario, the court would take its time getting to the case. Trump still appears on the Colorado primary ballot in the meantime, pending a decision.
Then there are new challenges related to general election ballot.
Shanor said the court would have plenty of time to decide by November. But there are no guarantees. It’s possible the election could come and go before a decision, Mortenson said, and justices would thereafter declare the question moot.
The fifth and final of these possibilities: The court quashes the Colorado decision.
A majority of justices could disagree with the state court on the meaning of the words “engage” or “insurrection” or “officer.”
And then Trump is free to keep running in the 2024 election, in the face of four criminal cases.
Legal observers split on Colorado ruling
So, what’s the bottom line: Do these experts think Colorado judges made the right call?
Some wholeheartedly agree: “A very reasonable decision,” Friedman said.
To those who argue that it constrains democratic choice, he added: So? “That’s what constitutions do.” They define the extent of political rights. For example, he said, they also infringe upon Taylor Swift’s right to run for president before she turns 35.
On the left-leaning MSNBC network, conservative former judge Michael Luttig saluted the decision: “It was masterful. It was brilliant. It is an unassailable interpretation of the 14th Amendment.”
Unsurprisingly, the conclusions ran the other way on Fox News. Its legal analyst, Francey Hakes, called it “a couple of hundred pages of hot garbage.”
She’s not alone. Writing about this issue recently, Stanford law professor Michael McConnell, a former federal judge, said he has no use for Donald Trump, but he called “insurrection” a very serious term and said it should only be applied narrowly, and carefully, in a case this serious.
Rioters loyal to Trump are shown at the U.S. Capitol in Washington on Jan. 6, 2021, to prevent Joe Biden from being confirmed as president following the November 2020 election. (Jose Luis Magana/The Associated Press)
He also questioned the logic of applying this insurrection provision when none of the Jan. 6 participants has actually been convicted in court — or even charged — under the criminal statute that covers insurrection. Including Trump.
Regarding the democratic implications of this, McConnell asked rhetorically: “What could go wrong?”
Even in the Colorado ruling, the minority dissenting opinion raised these concerns.
“The irregularity of these proceedings is particularly troubling given the stakes,” said the minority opinion. “What took place here doesn’t resemble anything I’ve seen in a courtroom.”
Did an insurrection occur on Jan. 6?
The University of Michigan’s Mortenson, for his part, has been wrestling with this.
He called the Colorado decision solidly reasoned. The Supreme Court, he said, will have a hard time rejecting it on its merits — in fact, the Colorado ruling made sure it quoted conservative high court Justice Neil Gorsuch to buttress its opinion.
But he’s uncomfortable.
Mortenson is a proud liberal and occasionally refers, in casual conversation, to the events of Jan. 6, 2021, as an “insurrection.”
This, however, is not casual conversation. He said it stretches credulity that the events at the Capitol resemble the armed effort to secede from the United States in the Civil War.
“We’re just not talking about two equal things,” he said.
“To call it insurrection for the purposes of the Constitution is on the outer edges of what the term, I think, plausibly means — and leaves me very uncomfortable if the result of that is to disqualify a major, broadly supported political candidate from office.”
We’ll see what the Supreme Court might say. The American presidency hangs in the balance.
HALIFAX – Nova Scotia Premier Tim Houston says it’s “disgraceful and demeaning” that a Halifax-area school would request that service members not wear military uniforms to its Remembrance Day ceremony.
Houston’s comments were part of a chorus of criticism levelled at the school — Sackville Heights Elementary — whose administration decided to back away from the plan after the outcry.
A November newsletter from the school in Middle Sackville, N.S., invited Armed Forces members to attend its ceremony but asked that all attendees arrive in civilian attire to “maintain a welcoming environment for all.”
Houston, who is currently running for re-election, accused the school’s leaders of “disgracing themselves while demeaning the people who protect our country” in a post on the social media platform X Thursday night.
“If the people behind this decision had a shred of the courage that our veterans have, this cowardly and insulting idea would have been rejected immediately,” Houston’s post read. There were also several calls for resignations within the school’s administration attached to Houston’s post.
In an email to families Thursday night, the school’s principal, Rachael Webster, apologized and welcomed military family members to attend “in the attire that makes them most comfortable.”
“I recognize this request has caused harm and I am deeply sorry,” Webster’s email read, adding later that the school has the “utmost respect for what the uniform represents.”
Webster said the initial request was out of concern for some students who come from countries experiencing conflict and who she said expressed discomfort with images of war, including military uniforms.
Her email said any students who have concerns about seeing Armed Forces members in uniform can be accommodated in a way that makes them feel safe, but she provided no further details in the message.
Webster did not immediately respond to a request for comment.
At a news conference Friday, Houston said he’s glad the initial request was reversed but said he is still concerned.
“I can’t actually fathom how a decision like that was made,” Houston told reporters Friday, adding that he grew up moving between military bases around the country while his father was in the Armed Forces.
“My story of growing up in a military family is not unique in our province. The tradition of service is something so many of us share,” he said.
“Saying ‘lest we forget’ is a solemn promise to the fallen. It’s our commitment to those that continue to serve and our commitment that we will pass on our respects to the next generation.”
Liberal Leader Zach Churchill also said he’s happy with the school’s decision to allow uniformed Armed Forces members to attend the ceremony, but he said he didn’t think it was fair to question the intentions of those behind the original decision.
“We need to have them (uniforms) on display at Remembrance Day,” he said. “Not only are we celebrating (veterans) … we’re also commemorating our dead who gave the greatest sacrifice for our country and for the freedoms we have.”
NDP Leader Claudia Chender said that while Remembrance Day is an important occasion to honour veterans and current service members’ sacrifices, she said she hopes Houston wasn’t taking advantage of the decision to “play politics with this solemn occasion for his own political gain.”
“I hope Tim Houston reached out to the principal of the school before making a public statement,” she said in a statement.
This report by The Canadian Press was first published Nov. 8, 2024.
REGINA – Saskatchewan Opposition NDP Leader Carla Beck says she wants to prove to residents her party is the government in waiting as she heads into the incoming legislative session.
Beck held her first caucus meeting with 27 members, nearly double than what she had before the Oct. 28 election but short of the 31 required to form a majority in the 61-seat legislature.
She says her priorities will be health care and cost-of-living issues.
Beck says people need affordability help right now and will press Premier Scott Moe’s Saskatchewan Party government to cut the gas tax and the provincial sales tax on children’s clothing and some grocery items.
Beck’s NDP is Saskatchewan’s largest Opposition in nearly two decades after sweeping Regina and winning all but one seat in Saskatoon.
The Saskatchewan Party won 34 seats, retaining its hold on all of the rural ridings and smaller cities.
This report by The Canadian Press was first published Nov. 8, 2024.
HALIFAX – Nova Scotia‘s growing population was the subject of debate on Day 12 of the provincial election campaign, with Liberal Leader Zach Churchill arguing immigration levels must be reduced until the province can provide enough housing and health-care services.
Churchill said Thursday a plan by the incumbent Progressive Conservatives to double the province’s population to two million people by the year 2060 is unrealistic and unsustainable.
“That’s a big leap and it’s making life harder for people who live here, (including ) young people looking for a place to live and seniors looking to downsize,” he told a news conference at his campaign headquarters in Halifax.
Anticipating that his call for less immigration might provoke protests from the immigrant community, Churchill was careful to note that he is among the third generation of a family that moved to Nova Scotia from Lebanon.
“I know the value of immigration, the importance of it to our province. We have been built on the backs of an immigrant population. But we just need to do it in a responsible way.”
The Liberal leader said Tim Houston’s Tories, who are seeking a second term in office, have made a mistake by exceeding immigration targets set by the province’s Department of Labour and Immigration. Churchill said a Liberal government would abide by the department’s targets.
In the most recent fiscal year, the government welcomed almost 12,000 immigrants through its nominee program, exceeding the department’s limit by more than 4,000, he said. The numbers aren’t huge, but the increase won’t help ease the province’s shortages in housing and doctors, and the increased strain on its infrastructure, including roads, schools and cellphone networks, Churchill said.
“(The Immigration Department) has done the hard work on this,” he said. “They know where the labour gaps are, and they know what growth is sustainable.”
In response, Houston said his commitment to double the population was a “stretch goal.” And he said the province had long struggled with a declining population before that trend was recently reversed.
“The only immigration that can come into this province at this time is if they are a skilled trade worker or a health-care worker,” Houston said. “The population has grown by two per cent a year, actually quite similar growth to what we experienced under the Liberal government before us.”
Still, Houston said he’s heard Nova Scotians’ concerns about population growth, and he then pivoted to criticize Prime Minister Justin Trudeau for trying to send 6,000 asylum seekers to Nova Scotia, an assertion the federal government has denied.
Churchill said Houston’s claim about asylum seekers was shameful.
“It’s smoke and mirrors,” the Liberal leader said. “He is overshooting his own department’s numbers for sustainable population growth and yet he is trying to blame this on asylum seekers … who aren’t even here.”
In September, federal Immigration Minister Marc Miller said there is no plan to send any asylum seekers to the province without compensation or the consent of the premier. He said the 6,000 number was an “aspirational” figure based on models that reflect each province’s population.
In Halifax, NDP Leader Claudia Chender said it’s clear Nova Scotia needs more doctors, nurses and skilled trades people.
“Immigration has been and always will be a part of the Nova Scotia story, but we need to build as we grow,” Chender said. “This is why we have been pushing the Houston government to build more affordable housing.”
Chender was in a Halifax cafe on Thursday when she promised her party would remove the province’s portion of the harmonized sales tax from all grocery, cellphone and internet bills if elected to govern on Nov. 26. The tax would also be removed from the sale and installation of heat pumps.
“Our focus is on helping people to afford their lives,” Chender told reporters. “We know there are certain things that you can’t live without: food, internet and a phone …. So we know this will have the single biggest impact.”
The party estimates the measure would save the average Nova Scotia family about $1,300 a year.
“That’s a lot more than a one or two per cent HST cut,” Chender said, referring to the Progressive Conservative pledge to reduce the tax by one percentage point and the Liberal promise to trim it by two percentage points.
Elsewhere on the campaign trail, Houston announced that a Progressive Conservative government would make parking free at all Nova Scotia hospitals and health-care centres. The promise was also made by the Liberals in their election platform released Monday.
“Free parking may not seem like a big deal to some, but … the parking, especially for people working at the facilities, can add up to hundreds of dollars,” the premier told a news conference at his campaign headquarters in Halifax.
This report by The Canadian Press was first published Nov. 7, 2024.
