Helluva Way To Run A Constitutional Crisis!

'It's going to be chaos': Legal challenges to 'insurrectionist' Trump candidacy could spark new 'constitutional crisis' https://t.co/HZsI0ibd82

— Raw Story (@RawStory) November 16, 2022

CREW and two other advocacy groups vowed to challenge Trump's candidacy within minutes of his announcement, but those objections would play out on a state-by-state basis before both election officials and state courts, and the former president could try to stop those efforts in federal court -- and the U.S. Supreme Court could eventually step in. 

“The landscape for the Trump issue is very clean, there’s not much precedent and it gives a lot of these local and state officials a huge amount of discretion to try to keep him off the ballot,” said Josh Blackman, a law professor at South Texas College of Law Houston. “I think it’s going to be chaos.”

Well, it's clean; but it's not pristine: 

Jan. 6 Rioter Barred From Holding Office For Life Under Insurrection Clause After His Appeal Is Dismissed https://t.co/PiLZL4CtOU via @TPM

— Josh Marshall (@joshtpm) November 16, 2022

The New Mexico Supreme Court has dismissed an appeal from “Cowboys for Trump” founder Couy Griffin to overturn a decision that barred him from holding public office for life under the 14th Amendment’s Disqualification Clause.

Griffin was arrested and convicted for entering restricted areas at the Capitol on Jan, 6, 2021. At the time, he was serving as a commissioner of Otero County, New Mexico, where he was elected in 2018. But residents began pushing to have him removed from office in 2021 for a number of reasons, including allegedly using his position to promote Cowboys for Trump.

...

Earlier this year, three New Mexico residents, with the help of the watchdog group Citizens For Responsibility and Ethics in Washington (CREW), petitioned for Griffin to be removed from office over his active participation in the Jan. 6 insurrection. The residents alleged in the complaint that Griffin brought multiple firearms with him to Washington, D.C. and gave speeches “encouraging people to go to Washington and stop the transfer of power.” Griffin was allegedly photographed scaling a wall to get closer to the Capitol building.

On Sept. 6, a federal judge ruled that Griffin was disqualified from holding public office under Section 3 of the 14th Amendment, which prohibits anyone who “hold[s] any office, civil or military, under the United States” from engaging in “insurrection or rebellion” against the country — marking the first time a public official has been ousted under the clause since 1869.

Griffin appealed the decision to the New Mexico Supreme Court on Sept. 20; the case was dismissed on Tuesday afternoon on procedural grounds. The Supreme Court ruled that Griffin failed to follow proper appeals procedures.

“This is an affirmation that Section 3 of the 14th Amendment can and should be enforced against all the January 6th insurrectionists who took an oath to defend the Constitution, whether they are current or former officeholders,” CREW senior vice president Donald Sherman said in a statement, “Today is an important day for our democracy.”

But...is it?  I can't figure out why Griffin appealed a federal court ruling to a state supreme court.  That could be why the court ruled he hadn't followed proper procedure (or, more likely, that the court didn't have jurisdiction, because he failed to follow...oh, it's too much trouble to explain it as a legal issue.)  I think CREW got lucky because Griffin was such a doofus, or had such bad counsel advising him.  But the trial court ruling is still on the books.  Not exactly precedent; but a brick out of the wall, anyway.

Now, is there any sense in challenging Trump in 50 states?  Probably not.  First, where would this play out?  In state courts, or in federal courts?  My guess is any state court actions would be removed to federal court, since the issue is primarily a federal one (the 14th Amendment) and we can't have 50 states adopting 50 different interpretations of the Constitution.  We can, of course, have 50 federal judges in 50 state issuing 50 rulings.  It's VERY unlikely to come to that, but let's play the maximalist game and see where we come out.

That would quickly be reduced to just 11 opinions, however.  We have 11 appellate circuits in the federal system, each could quickly rule on an appeal, which would dismiss all the other appeals in that district (hence we get to 11 rather rapidly).  Differences in opinion in the appellate circuits alone (not outcome, just reasoning) could lead it straight to the Supreme Court.  I honestly don't know what they'd do (many think they do, but consider how little help the Supremes gave Trump in his effort to overturn the 2020 election).  OTOH, the Court might go in favor of the status quo, such as it is, and basically disallow implementation of the third clause of the 14th, finding it to be an historical relic applicable only to persons from the states that seceded from the Union in the 19th century, and therefor to be long past its expiration date.  It's neat, it's simple, and it's almost "originalist."  And constitutional crisis averted.

It's telling they had to go to a professor at South Texas College of Law to get the "constitutional crisis" phrase somebody was obviously looking for.  I'm old enough to remember when Trump's 62 (or was it 64?  I've seen different numbers recently) lawsuits were going to prompt a constitutional crisis, after it created "chaos" in the courts and the country.  And then January 6th was supposed to spark one.  And yet....

Can we just put "constitutional crisis" on the list of banned words for 2023?  Is it too early to start that list now?