A Rejoinder; and Just What Is an Insurrection?

Start your day with TPM.
Sign up for the Morning Memo newsletter

TPM Reader CB responds to JS by arguing that case law and precedent about insurrections in one context doesn’t necessarily settle the question of what counts for the purposes of the 14th amendment’s disqualification clause. As I told CB I partly agree but not entirely. I subscribe to an older of who in our system gets to interpret the constitution. Each branch has a right and a duty to interpret the meaning of the constitution. The courts may get the last word. But it’s not the only word.

My perspective as a reader/subscriber with over a decade of strategic impact public interest litigation experience:

I couldn’t disagree more with the reader who said “The question is clear to me: would the President have the authority under the *1807* Insurrection Act to federalize troops in this case?”

The decision whether to federalize troops to quell an insurrection is a question of political judgment. It’s an executive decision made by the President. It’s not clear to me that a national guard deployment is even justiciable, i.e. capable of being reviewed by the judiciary. Even if there was some way to review such a decision, the judiciary grants the executive branch wide berth and great deference in making these kinds of discretionary calls (if the judicial branch even reviews the case at all). See Martin v. Mott (“the authority to decide whether [to deploy troops under the law] belongs exclusively to the President [and] his decision is conclusive upon all other persons.”); see also The Insurrection Act Explained, Brennan Center for Justice.

In other words, framing this in terms of whether the conduct is subject to federal intervention under the Insurrection Act policing is setting the bar far too low.

Rather, the Supreme Court should look to set a high standard for disqualification under the 14th Amendment’s Insurrection Clause that balances the democratic interest of protecting legitimate political activity (such as First Amendment speech and official acts, even if offensive, wrong, or controversial) against the interests sought to be protected by the Insurrection Clause. I can imagine a few reasonable ways that a high standard could be set that balances these competing interests. Due to the apparent egregiousness of Trump’s behavior (bad faith, knowledge of illegality) it’s hard to imagine a standard that doesn’t potentially exclude his candidacy. Perhaps an “actual conviction of insurrection/rebellion under 18 U.S.C. 2383” standard would be Trump’s best bet as it affords him criminal due process protections and buys him time, but even that might not ultimately work out for him. 

Latest Editors' Blog
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: