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Critics hope Antonin Scalia may be keeping Trump off the ballot

Liberal groups want to keep former president Donald Trump The January 6, 2021, attack on the U.S. Capitol turned to a surprising source as it made its way to the Supreme Court: Justice Antonin Scalia and several current conservatives on the Supreme Court.

Anti-Trump forces cited Year 2014 unanimously agreed Scalia’s opinionThe hero of the conservative legal movement who died in 2016 made the case that the 14th Amendment’s “insurrection prohibition” applied to former presidents, not just ordinary federal officials.

The blockbuster case will determine whether Trump can run for president again. Oral arguments are scheduled for next Thursday.

It’s no coincidence that Scalia’s remarks were cited on a court where conservatives hold a 6-3 supermajority that includes three Trump nominees. Advocates hope to convince the justices that they can reject Trump’s arguments in a way that still complies with conservative legal principles.

“To quote Scalia is to try to invoke the moral authority of one of the court’s great originalists,” said Derek Muller, an expert on the case and a professor at the University of Notre Dame Law School. “They’re not just citing any people.”

Trump claimed that the president was not an “officer” of the United States (a term used in the Fourteenth Amendment after the Civil War) and therefore the ban did not apply to him. Instead, he believed the word “officer” meant capturing officials appointed by the president, sworn to uphold the Constitution, and then engaged in rebellion.

His opponents, including liberal groups and some former Republican officials, balked at that interpretation in a series of “friend of the court” briefs filed Wednesday.

“Explicitly requires” that the amendment apply to former presidents, Constitutional Accountability Centera progressive legal advocacy group told the justices in a brief that quoted Scalia. Historically, “officials in every branch of government refer to the president as an official of the United States,” the group wrote.

Former conservative appeals judge J. Michael Luttig has become an outspoken Trump critic. Scalia is also quoted in a brief filed with the court this week.

Scalia consensus, joiner Chief Justice John Roberts and two other conservatives involved in a dispute between a truck driver and a soda dealer. The late judge wrote that all “officers” in the United States must be appointed by the president “unless” the Constitution provides otherwise.

It’s on the basis of this warning that Trump’s critics press their case.

Scalia’s explanation met with fierce pushback from other conservatives, especially Joshua Blackman, a professor at South Texas College of Law in Houston, who hopes to participate in next week’s debate — in part to explain his interpretation of Scalia’s views, and briefly explains his interpretation of Scalia’s views. letter the late judge wrote weeks later.

Blackman argued it would be a mistake to view Scalia’s terse language in the consent decree and letter as a clear statement of his position.

“Part of the problem with this case is that people are litigating this issue in uncensored blogs and law review articles. There are significant problems with some of these arguments,” Blackman said.

Scalia’s concurrence is an example of anti-Trump advocates highlighting past statements by the court’s conservatives to counter the former president’s arguments.

Others drew attention to Justice Neil Gorsuch’s opinion Written in 2012 When he was a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch wrote that states could exclude candidates from the ballot if they were constitutionally unqualified to hold the office they sought.

Although not mentioned in recent briefings, a case last month indirectly touched on a more technical issue in Colorado’s ballot disputes: whether certain constitutional provisions can enforce themselves (called “self-executing”), or Does it first require Congress to pass a law. The Colorado Republican Party argued that the counterinsurgency provision in the Colorado case required Congress to intervene first.

On January 16, during arguments in a case involving whether states can be sued directly when the government takes private property, conservative Justice Samuel Alito asked both sides tough questions, but at one point it seemed Questions were raised about the concept of constitutional rights. A law of Congress.

“It sounds like a very weak right if… it’s restricted in this way,” Alito says.

Whether citing such past statements would have any impact on the courts is an open question.

“A lot of times, members of the court have great respect for each other but will disagree with what they say. But for the public, it’s certainly persuasive,” Mueller said.

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