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Steven Spiegel's avatar

I understand Ben’s explanation that private attorneys couldn’t properly file suit given the Supreme Court holding legislation is required by Congress. But I fully agree we should be discussing what could be done. His explanation doesn’t fully address the explicit language of the Constitution that the already adjudicated insurrection infirmity can only be removed by a vote of 2/3 of each house of Congress.

Since the Court held only Congress can act, why can’t the current Congress introduce a bill to remove the infirmity? Since it will likely fail to pass by the required supermajority, Trump would not be sworn in. That’s consistent with Supreme Court precedent and previous Congressional actions refusing to seat elected insurrectionists. See United Powell v. McCormack, 395 U.S. 486, 550 (1969) (distinguishing between Congress’s power to expel a member, which requires a two-thirds majority, and the power to exclude a member who is constitutionally disqualified). All relevant state constitutions have a similar provision empowering state legislatures to judge the qualifications of their members.

The U.S. House of Representatives has previously used this authority to refuse to seat Member-elect Victor L. Berger in the 66th Congress. See Cannon’s Precedents, Ch. 157, § 56. After the Civil War, the House also debated whether to seat John Rice and Alfred Waddell, who faced allegations that they violated the Disqualification Clause. Hinds’ Precedents, Ch. 14. The U.S. Senate also invoked Section Three of the Fourteenth Amendment when it refused to seat Zebulon Vance, who had previously served as governor of North Carolina during the Civil War. (Courtesy CREW).

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joe alter's avatar

The portion of the opinion that Ben highlights, isn't even dicta, nor is it in the scope of the case before them, so it is simply can not be binding on the lower federal courts.

Also, the reliance on Griffin's case requires a criminal charge, and therefor a federal law to override state law. However it also illustrates why it would not be relevant where a case for declaration and injunction consistent with what sec 3 mandates in federal civil court. It is the Supreme Court which is bound by sec 3, even in Anderson the Majority don't dispute what sec 3 instructs the court with it's plain meaning, they avoid sec 3 completely in the context of the case.

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Daphne's avatar

JOIN US FOR A PEACEFUL DEMONSTRATION.

https://nowmarch.org/

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