I wrote this after listening to the arguments in the US Supreme Court over Colorado’s disqualification of Mr. Trump from the ballot.
First, the point has been made that the consequences of this case will be tragic whatever the Court decides. If Mr. Trump is disqualified, the evidence is that there will be further insurrection and possibly much worse than we experienced on January 6. But as has also been pointed out, if Mr. Trump is not disqualified and if he then wins the election, he will do everything possible to remove from office any and all people in all departments, the military included, who are not loyal to him, and that will be one part of his effort to end democracy in America and make himself permanent, replicating the conditions in many of the countries in the less developed world, in Central and South America, in Africa, Asia and the Middle East. I doubt many of us want to go there.
So I would prefer to disqualify Mr. Trump. We all watched hm sit back looking at the television while the insurrection was taking place, smiling and refusing to use his powers to stop it after he had done his best to incite it. He was doing everything he could to destroy American democracy while preserving a fig leaf of deniability. On balance I would be much happier if he is disqualified before the military and the National Guard have been stripped of loyal Americans by Mr. Trump. Despite rules prohibiting the use of the military in American politics, Trump tried to use it to suppress demonstrations and show support for him at political events, has plans to use the military against his domestic enemies and discussed that possibility before leaving office.
Is there anything good to be expected from the Supreme Court? One position that seemed from the argument to have traction on both wings of the Supreme Court was the idea that one state could not make such a decision with profound effects on the country.
Let me explain the constitutional background. Art. II of the Constitution specifies how a president should be selected. It has been modified in other regards by subsequent amendments but not with respect to the method for choosing electors of the president – you vote for slates of people who have promised to vote for the candidate you are trying to vote for, not the candidate. That provision was driven by slavery. Slave states wanted to control the selection, not leave it to voters. So they wrote, “Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress….”
In the last presidential election, Mr. Trump wanted to take advantage of the phrase “in such manner as the Legislature may direct” and have sympathetic state legislatures supercede the voters’ choice. I regard that as an unacceptable ploy to end American democracy.
Some justices toyed with removing states from the choice of electors but only after the election. It’s a marginal change because states can’t be completely removed from the process without changing the Constitution.
So is it a good idea to get state legislatures out of a piece of the process of electing the president while recognizing that state legislatures can still play a role so long as they do it earlier?
I want the man disqualified before he can do any more damage.
I write this after listening to the arguments in the US Supreme Court over Colorado’s disqualification of Mr. Trump from the ballot.
First, the point has been made that the consequences of this case will be tragic whatever the Court decides. If Mr. Trump is disqualified, the evidence is that there will be further insurrection and possibly much worse than we experienced on January 6. But as has also been pointed out, if Mr. Trump is not disqualified and if he then wins the election, he will do everything possible to remove from office any and all people in all departments, the military included, who are not loyal to him, and that will be one part of his effort to end democracy in America and make himself permanent, replicating the conditions in many of the countries in the less developed world, in Central and South America, in Africa, Asia and the Middle East. I doubt many of us want to go there.
So I would prefer to disqualify Mr. Trump. We all watched hm sit back looking at the television while the insurrection was taking place, smiling and refusing to use his powers to stop it after he had done his best to incite it. He was doing everything he could to destroy American democracy while preserving a fig leaf of deniability. On balance I would be much happier if he is disqualified before the military and the National Guard have been stripped of loyal Americans by Mr. Trump. Despite rules prohibiting the use of the military in American politics, Trump tried to use it to suppress demonstrations and show support for him at political events, has plans to use the military against his domestic enemies and discussed that possibility before leaving office.
Is there anything good to be expected from the Supreme Court? One position that seemed from the argument to have traction on both wings of the Supreme Court was the idea that one state could not make such a decision with profound effects on the country.
Let me explain the constitutional background. Art. II of the Constitution specifies how a president should be selected. It has been modified in other regards by subsequent amendments but not with respect to the method for choosing electors of the president – you vote for slates of people who have promised to vote for the candidate you are trying to vote for, not the candidate. That provision was driven by slavery. Slave states wanted to control the selection, not leave it to voters. So they wrote, “Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress….”
In the last presidential election, Mr. Trump wanted to take advantage of the phrase “in such manner as the Legislature may direct” and have sympathetic state legislatures supercede the voters’ choice. I regard that as an unacceptable ploy to end American democracy.
Some justices toyed with removing states from the choice of electors but only after the election. It’s a marginal change because states can’t be completely removed from the process without changing the Constitution.
So is it a good idea to get state legislatures out of a piece of the process of electing the president while recognizing that state legislatures can still play a role so long as they do it earlier?
I want the man disqualified before he can do any more damage.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.