Understanding Standing
Okay, somebody help me out here. We’ve been teased by lawyers, people like Michael Luttig (conservative) and Lawrence Tribe (liberal) that the former President of the United States is prevented from being elected to any federal or state office because he fomented a coup with several overlapping strategies meant to thwart a peaceful transition to the Biden Administration. This, they point out, is spelled out by the 3rd Clause to the 14th Amendment, to wit:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof But Congress may by a vote of two-thirds of each House, remove such disability.”
Luttig and Tribe first made this claim in The Atlantic (sorry, subscription needed to read it all), but it keeps cropping up in discussions by the cable newsies.
There are lots of discussions of this recently, notably here, but one snag is that the matter has not come up since the years following the Civil War (or The War of Northern Aggression, depending on your point of view).
Everyone pretty much knew who participated in the treasonous secession of the southern states, or if they didn’t, the insurrectionists were soon outted. So the “vague” language in the 14th as to how to prove a person qualifies to be disqualified from elected office wasn’t a problem.
It is now.
But in a decision today by an Obama-appointed federal judge, Judge Robin Rosenberg, TFG’s name can appear on the Florida presidential primary ballot next year despite his (some say illegal) effort to stay in office after January 20, 2021.
Why? Why did Judge Rosenberg ignore the learned opinions of two well-known constitutional legal experts in her ruling? Is it because TFG has not been convicted (yet) of any crime in this matter? Is it too soon?
Well, it turns out that, according to Judge Rosenberg, an ordinary citizen in Florida has no standing to bring that suit.
Judge Rosenberg quickly threw out the case on standing alone, and left it there. The issue of whether TFG engaged in insurrection or given aid and comfort to insurrectionists did not enter into her decision. Okay. That’s fair. That’s something yet to be determined. I get it. Maybe.
But if an ordinary citizen, a tax lawyer in this case, and I assume a voter in the 2020 election, has no standing to raise this issue in court, then who does? Is it that the attempted coup was merely attempted? Does TFG qualify to be disqualified only if he succeeded?
