Is it better that companies be
publicly or privately held? Such a question is of such magnitude that glossy,
simplistic answers should be eschewed. This is not to say that the answer is
situational in nature. Rather, it is more likely that each comes with pluses
and minuses from the perspective of an economic system as a whole. As business “leaders”
give their advice, it is important to keep in mind whether any personal or
institutional conflicts of interest exist and thus could warp the space itself
of the advice. Yes, I am intimating Einstein’s theory of general relativity
here. Rather than provide an answer without having studied the matter
sufficiently, I will provide a way to look at the advice given by Jamie Dimon,
CEO of JPMorgan Chase.
Saturday, April 20, 2024
On the Reputational Capital of a Business Leader on a Societal Stage
Friday, February 23, 2024
On the Role of Agribusiness in Global Warming
Agriculture is a major source of carbon and methane emissions, which in turn are responsible for the general trend of the warming of the planet’s atmosphere and oceans. In fact, agriculture emits more than all of the cars on the roads. 10 percent of the emissions carbon dioxide and methane in the U.S. come from the agricultural sector. Livestock is the biggest source of methane. Cows, for example, emit methane. Methane from a number or sources, including the thawing permafrost, accounted for 30 percent of global warming in 2023. As global population has grown exponentially since the early 1900s, herds of livestock at farms have expanded, at least in the U.S., due to the increasing demand.[1] We are biological animals, and we too must eat. More people means that more food is needed, and the agricultural lobby in the U.S. is not about to let the governments require every resident to become a vegetarian. Indeed, the economic and political power of the large agribusinesses in the U.S. have effectively staved off federal and state regulations regarding emissions. It comes down to population, capitalism, and plutocracy warping democracy.
1. Georgina Gustin, “Climate Change and Agriculture,” Yale University, February 22, 2024.
Monday, January 8, 2024
Exfoliating a Hero: On Lincoln's Unconstitutional Overreaching
Legislation of the U.S. Government during the Civil War: A Case of Unconstitutional Governance?
Wednesday, January 3, 2024
We the People: Invigorating Popular Sovereignty by Referendi
1. James Madison, Notes in the Federal Convention of 1787. New York: Norton, 1987, p. 74.
2. Richard Nixon, 1999 Victory Without War, New York: Simon and Schuster, 1988, p. 16.
The Israeli Supreme Court’s Conflict of Interest as Unreasonable
Ironically, in making the ruling on
New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the
country’s basic law that would have removed the judiciary’s authority of judicial
review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably
exploited a conflict of interest. Basic Law, which is
essentially constitutional law, includes the basic architecture of a
government, such as how the executive, legislative, and judicial functions are
related. Self-interest being a salient feature of human nature, we can assume
that the governmental functionaries in each of those functions naturally seek
to expand their respective jurisdictions relative to those of the other two. I
contend that to give one or two of those areas the last word in altering the
division of authority involves a conflict of interest. This applies to a
constitutional court. Therefore, even though democracy is served by a judicial
decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with
entanglements.
By eight to seven justices, the
court ruled “that a government amendment to the so-called reasonableness law
should not stand. The bill had stripped the Supreme Court of the power to
declare government decisions unreasonable.”[1]
That very officials who make government decisions in the Knesset passed the
basic law can be seen as problematic. It was essentially a power-grab by the
executive/legislative domains at the expense of the judiciary. Although the
court “rejected the amendment because it would deal a ‘severe and unprecedented
blow to the core characteristics of the State of Israel as a democratic state,’”[2]
the naked power-grab could itself be viewed as unreasonable, even taking for
granted the element of power-aggrandizing in governing. The court could also
have ruled on the basis of there being an institutional and personal conflict
of interest, but the court itself could be charged with the same offense in
deciding the matter. It is just this conflict of interest that flew below the
media’s radar (and got me to writing).
Even though the ruling did not expand the court’s authority, the decision arrested a decrease, and was thus in the personal and institutional interest of the judiciary in terms of power. Just as the majority in the Knesset had acted in its interests, the majority on the court did as well. The matter was thus a power struggle, and thus giving one side the final, definitive say is unfair. The ruling cites the importance of judicial review of laws passed by the Knesset as being in the broader interest of democracy in Israel, but the relatively narrow personal and institutional interests of the justices and their court could be expected to be exploited, and this may be the real reason for the ruling. To be sure, an independent judiciary is indispensable for the executive and legislative functionaries to be held accountable. Although they could argue that the voters could perform that function at election-time, elections do not include sending corrupt officials to jail, and the sitting Prime Minister was charged with corruption judicially at the time that he was steering the bill to passage (which counts as a personal conflict of interest). Even if the court’s democracy argument is solid, the personal and institutional conflicts of interest in the justices resisting a restriction on the purview of their judicial authority are inherently unethical and thus should be obviated if possible.
The inherency is explained by just how inherent the
self-interest to exploit a conflict of interest, whether personal or
institutional, is in human nature.[3] Without doubt a conflict of interest that
actually has been exploited is unethical because a private or relatively narrow
benefit is put before a public or relatively broad benefit or duty.
In judicial language, strict scrutiny should therefore be applied to unilateral decisions by legislative, executive, or judicial functionaries or “branches,” of government that self-aggrandize authority at the expense of one or two of the other “branches.” I recommend that such conflicts of interest be obviated by putting such matters to the electorate. So this is not merely a rubber-stamp of the majority parties, a 2/3 majority should be required to change Basic Law. Otherwise, we are left with the unsavory alternative of having the contending governmental interests play out their internecine power-struggles on the constitutional stage with one such interest having to have the final word, which is unfair to the other interests. In a democracy, after all, popular sovereignty is more fundamental than governmental sovereignty.
2. Ibid.
Friday, December 22, 2023
The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?
On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.
Section 3 of the 14th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.
Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14th Amendment to Donald Trump.
Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office.
After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.
Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.
Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.
Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.
Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.
I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14th Amendment.
Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.
2. The U.S. Constitution, Section of the 14th Amendment.
3. Kinsey Crowley, “What Is the 14th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.
Monday, December 11, 2023
On the Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power
In the E.U., the state
governments and federal institutions can ask the European Court of Justice (the
ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting
for a dispute to winds its way formally through district and appellate courts may
be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special
Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to
decide whether the former U.S. president Donald Trump had any immunity from
criminal prosecution of his involvement in the riot at the U.S. Capitol that
interrupted the formal counting by a joint session of Congress of the Electoral
College presidential ballots. The trial was set to begin the following March,
and the question of the former president’s immunity had to be decided before
the trial could begin. Hence the “extraordinary request,” which I contend
should not be extraordinary given the time frame and the important role of the highest
court in safeguarding American democracy from domestic threats.
The prosecutor asked the U.S.
Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump
is not immune from “the election subversion prosecution case.”[1]
Trump’s lawyers had argued that Trump’s actions in speaking outside the White House
on January 6, 2020 were part of his official duties because he was protecting
the American democratic system from alleged vote-fixing by Democrats. Chutkan
rejected that argument, pointing out that the speech was oriented to Trump’s
re-election and thus was not part of a president’s official duties—efforts to
secure another term extend beyond the performance of the office within the
current term of office. Essentially,
applying to continue in an office is not a function of the office. Chutkan classified
Trump’s speech as falling under the rubric of campaign speeches even though the
election had passed because he was using the speech to try be re-elected by
Congress (by disputing the authenticity of several state electoral ballots).
To be sure, it was not as if
Trump went with the option that he was considering of surrounding the Capitol
with tanks—something President Nixon had also considered doing in 1974 during the
Watergate scandal, which by the way ended up prompting him to resign. Instead,
Trump was trying to throw the election to the Congress by pressuring it to vote
on the validity of several of the Electoral College ballots that had been submitted
by the state governments to be counted. The U.S. Constitution does give
Congress a role in presidential elections, both in certifying the ballots and electing
a president outright if no candidate gets a majority of the Electoral College
votes. Had there been evidence of significant election fraud that would justify
Congressional votes on the Electoral College ballots from several key states
such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened
while staying within the constitutional framework. It was Trump’s way of
applying pressure, by instigating a mob to disrupt the official counting, that resulted
in the federal indictments that run just short of insurrection. By the way, I
asked a judge on the D.C. district court why he thought Trump had not been
indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and
a conviction based expressly on it necessary for someone to be barred from running
for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado
is looking at that now,” he added, presumably without there being a trial. It’s
a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge
was doing in lieu of a trial on the facts decided by a jury.
Perhaps even more than the presumption
of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents
is vital to American democracy. Writing to the U.S. Supreme Court, the
prosecutors with the special counsel insisted that “nothing could be more vital
to our democracy” than holding a former U.S. president accountable for breaking
a law.[2]
Indeed, a “cornerstone of our constitutional order is that no person is above
the law. The force of that principle is at its zenith where, as here, a grand jury
has accused a former president of committing federal crimes to subvert the
peaceful transfer of power to his lawfully elected successor.”[3]
Many democracies have turned into military dictatorships precisely because the
peaceful transfer of power was not respected. With a past of rule by kings,
both domestic and colonial, many African countries have had trouble with the
peaceful transfer of power. As a result, the foreign direct investment of multinational
corporations has not been as large as the continent would need to develop economically.
Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent
of a president getting away with having violated the U.S. Constitution could begin
a slippery slope downward. More than sufficient grounds existed in 2023 for the
U.S. Supreme Court to fast-track the question of Trump’s immunity.
The question of whether the trial
could go forward was subject to time constraints; were the trial date of March,
2024 delayed pending the question of Trump’s immunity from prosecution going through
the lengthy appellate process, the question of Trump’s guilt could still be unanswered
by the next presidential election, in early November, 2024. Even though several
presidential candidates were insisting that they would support a convicted
felon for president, presumably voters would want to know whether Trump had committed
a crime in attempting to thwart the results of the 2020 presidential election
before casting their respective ballots.
Hence, the prosecutors wrote to
the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his
immunity and related claims, however, suspends the trial of the charges against
him, scheduled to begin on March 4, 2024. . . . It is of imperative public
importance that respondent’s claims of immunity be resolved by this Court and
that respondent’s trial proceed as promptly as possible if his claim of
immunity is rejected.”[4]
The public importance has to do with the electorate having as much information
as possible concerning the charges against the presidential candidate before
going to the polls that upcoming November.
The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
Thursday, December 7, 2023
U.S. Anti-Trust Law: Applicable to Amazon?
In September, 2023, the Federal Trade Commission and seventeen states sued Amazon on ant-trust grounds for restraining trade and excessively raising prices on third-party sellers and consumers. Three months later, a leaked internal memo revealed Amazon’s anti-labor strategies of buying off local politicians and gaining reputational capital through well-publicized charitable work. Such work, as an anti-union strategy, demonstrates that the very expression, corporate social responsibility, is an oxymoron, or at the very least a misnomer (i.e., misnamed); a more accurate, and thus revealing, label would be corporate marketing. One effect of the “responsibility” connotation is that companies such as Amazon with mammoth market power could effectively hide strategic efforts in restraint of trade, and thus curtailing competition. Combined with feckless anti-trust prosecution, the result is an American economy that has not lived up to Adam Smith’s theory wherein competition via the price mechanism is necessary for individual self-interests to have beneficial unintended consequences systemically and thus in terms of the public good.
The civil case accused Amazon “of engaging in anti-competitive practices
through measures that deter sellers from offering lower prices for products on
non-Amazon sites.”[1]
Amazon was being accused of deprioritizing listings of products sold at lower
prices on non-Amazon sites, forcing merchants to raise their prices on Amazon’s
platform and other sites “in order to keep their products competitive on
Amazon.”[2]
The customers suffer as relevant results of searches are replaced by paid
advertisements that favor Amazon’s own brands. Also, the company was charging
third-party sellers nearly half of their total revenue as fees for using Amazon’s
platform, the result being higher prices for the consumers. The company was
also compelling the sellers to use the company’s logistics service in order to
qualify for Amazon Prime. With nearly 40 percent of the e-commerce market, Amazon
was allegedly flexing its muscle at the expense of competition.
Yet the chairperson of the
Federal Trade Commission, Lina Khan, was not asking the court to break up the
mammoth company, preferring instead to limit herself to “liability.”[3]
I contend that such an avenue falls short as a vehicle for instituting a
competitive market. Firstly, a company with market power of nearly half of the
e-commerce market can be expected to use its muscle in restraint of trade even
while paying out liability claims because the oligopolistic excess-profits (akin
to “monopoly rents”) more than compensate for the (tax deductible) expenses. Secondly,
I submit that it is utterly unrealistic to suppose that a company with such
overwhelming market power will not use it merely because of external
disincentives such as civil fines. The use of “sticks” and even “carrots” to
get such a company to not act as a profit-maximizer comes up short because such
“motivating” tools are tertiary; they do not shake the fundamentals, whereby a
non-competitive market is restructured to be competitive and thus
composed of price-takers rather than a price-setter.
It is worth expanding on the tactics
that an oligopolistic company can use to protect itself from extraneous
attempts to fundamentally change the market. We get a glimpse of Amazon’s “play
book” from an eight-page memo that reveals how one of America’s largest
companies “executes on its public relations objectives and attempts to curtail
reputational harm stemming from criticisms of its business. It also illustrates
how Amazon [sought] to methodically court local politicians and community
groups in order to push its interest in a region where [the company] could be hampered
by local moratoriums on warehouse development, and [where the company was]
facing resistance from environmental and labor activists.”[4]
Knowing the company’s tactics in Southern California can give us an insight
into how the company’s management blunts federal legislative action that
could break up Amazon itself in order to create a competitive playing field in
e-commerce.
In a nutshell, Amazon’s strategy
was to create the illusion of on-going charity work and to pay off elected
government officials to, among other goals, resist unionization of the company’s
workforce and restrictions on where the company can build. Specifically, the
management “’cultivated’ Michael Vargas, the mayor of the town of Perris,
through pandemic-related donations” ostensibly to “support the region,” but
actually to buy off his support for new warehouse construction.[5]
This is proof that companies use money even aside from political campaign “donations”
to get elected representatives to affect public policy favorably to the
companies themselves. If this is so locally, we can be assured that companies
as large as Amazon wouldn’t withhold the tactic from being used to buy federal
lawmakers, whose power could include breaking up the company.
In regard to Amazon’s corporate “social
responsibility” programs, the leaked document includes plans to have employees
drop off food to the Los Angeles Food Bank “in big media moments that are
broadcasted/posted.” The illusion of ongoing charitable work would of course
work to the company’s advantage in public relations. As the “memo suggested
curating similar moments during a back-to-school donation event and a [Christmas]
toy drive, where drop offs occur and Amazon executives, as well as groups who
receive grants from the company, ‘speak about Amazon’s impact” to the media
present, even as the company planned on cutting off groups that “did not result
in measurable positive impact,” charity was clearly viewed by Amazon’s managers
as a promotional tactic.[6]
The false societal image of a benevolent oligopolistic company could be
expected to shield governmental efforts to break up the company and perpetuate
the erroneous assumption that civil liabilities (i.e., verdicts against the
company) are enough to safeguard consumers because the company’s management is
benevolent.
In conclusion, the Federal Trade Commission shirked its governmental mandate to enforce the Sherman Antitrust law from the onset of the litigation, thus hampering the ability of the judiciary to order an effective remedy. In a large industry in which one company has 40 percent market share, and that company actively buys government officials and strategically uses public relations, the danger is not just to competitive markets, but also to American representative democracy and the rule of law itself. It is, I submit, no accident that the chairwoman of the FTC did not include breaking up Amazon as a remedy. We need only look at the company's strategially placed political contributions to surmise which elected officials might have put political pressure on the FTC. The company’s memo reveals that Amazon uses its extraordinary wealth to bend public policy away from the public good, like a black hole in space bends even space itself, to protect the company's viability by donating directly or indirectly to elected officials. I submit that plutocracy, rather than mob rule, is the greatest threat to American democracy. At the very least, private wealth knows how to protect itself politically, and even how to cover its tracks under the patina of corporate social responsibility.
2. Ibid.
3. Ibid.
4. Haleluya Hadero, “Amazon’s Internal Plans to Advance Its Interests in California Are Laid Bare in Leaked Memo,” APNews.com, December 7, 2023.
5. Ibid.
6. Ibid, for the quoted material, which is both from the article and the memo itself.
Monday, September 4, 2023
On Trump’s Eligibility to Run for President: Who Decides?
The 14th Amendment of
the U.S. Constitution “bans anyone who took an oath to uphold the Constitution
but who subsequently ‘engaged in insurrection or rebellion against,’ or gave
‘aid or comfort of the enemies’ of the Constitution from seeking any federal or
state office.”[1]
Did Donald Trump, when he was President of the United States, engage in
insurrection? Furthermore, who decides this and bars him from office?
During the summer of 2023,
lawyers opined on whether Don Trump is eligible to run for the U.S. presidency
in 2024. It is one thing for lawyers on law-school faculties to decide whether
Donald Trump, a former U.S. President as of 2023, is ineligible to run for
president in 2024; it is quite another thing for the U.S. Supreme Court to make
the determination; only the latter has governmental legitimacy that can legally
be enforced, for the U.S. Constitution gives the federal supreme court the task
of interpreting that constitution. In this case, the high court would be in the
position of making decisions of fact—did Trump engage in an insurrection—and
applying that decision to the 14th Amendment. “The question of
Donald Trump’s disqualification under the 14th Amendment will be
decided by the Supreme Court,” Michael Luttig, a conservative former federal
appellate judge said in 2023.[2]
Aside from the prediction, I contend that it should be.
The comment made by Luttig, who
had actually been a judge, didn’t stop lawyers who teach at law schools from
writing as if their own opinion were enough to render the former president
ineligible to run for president. Just because someone ventures an opinion does
not make it so. Even lawyers who specialize on writing in the field of
constitutional law are, after all, merely private citizens like the rest of us.
Of course, they, along with the rest of the American electorate, could decide indirectly
through voting for or against Don Trump on the basis of determinations of
whether he engaged in an insurrection. There are several problems with this
method.
First, the voters would need to
know how the framers used the word, insurrection, assuming an original
intent hermeneutic, or else what the word means in its legal sense in
2023. The electorate would also have to “research”—and some potential voters
put me off when I canvassed door to door by saying that they needed to research
the candidates (yeah, right)—the Trumps various actions that could be
considered to be insurrectionist: urging a crowd to pressure Congress on
January 6, 2020 when it was counting the states’ respective ballots of
electors, telling Vice President Pence that he had the authority to substitute
slates of Trump electors in Arizona, Georgia, and other states, pressuring
election officials in Georgia to “find” votes so Trump would win the state, and
considering the use of the military on the capitol so Congress would use his
slates of electors in states that he lost. Thomas Jefferson and John Adams
agreed in retirement that an educated and virtuous citizenry is essential to
the viability of a republic. They are also necessary for an electorate to apply
constitutional vigor even to a candidate whom some voters like.
Secondly, letting the voters
decide cannot keep Trump off any ballot prior to the election, not to mention
prior to the Republican Party’s nomination process, because an election is the
means by which voters would decide Trump’s fate. Former New Jersey governor
Chris Kristy’s assertion, “The voters of our party are going to need to
determine this question,” is neither competent nor fair to the Republic Party.
An election before the election might be feasible, but then perhaps the first
election would then de facto be the presidential election itself.
Deciding the matter by whatever
means after the Republican Party’s convention would not be fair to the party.
If election officials or a court later decide that Trump is ineligible, the
party would suddenly be left, after its convention, without a nominee for
president.[3]
Because the U.S. Supreme Court “keeps its own schedule and is not bound by
electoral deadlines, there exists the possibility that Trump could lock down
enough delegates to win the Republican nomination—or even be officially
nominated—only to be subsequently removed from the presidential ballot.”[4]
Perhaps in such a case the Republican National Committee would be tasked with
selecting the nominee, opening the door to the possibility of “back room”
political deal-making and even bribes. That rather undemocratic consequence
would be ironic if the people had been the deciders in a special election or
referendum.
So, leaving the matter up to the
voters is problematic; the matter of a nominee could ironically be decided by
committee. That leaves us with either election officials acting independently
of each other or all together, or the U.S. Supreme Court justices to decide.
Just because some citizens claim that Trump is ineligible to run for office
does not make it so. That almost all lawyers teaching constitutional law in the
United States have only one—hence undergraduate—degree in law is all the more
reason why their writings should not be taken as binding for election
officials. Even if “the case is not even close,” as William Baude and Michael
Paulsen wrote, it is not necessarily the case that, “All who are committed to
the Constitution should take note and say so.”[5]
Not only are articles in law reviews, whose editors are undergraduate law
students, not objective analysis at least in constitutional law; such writings
can be deemed political, and even instances of political activism claiming that
readers should take action of a political sort.
But should election officials of
local, state, or federal jurisdiction be the deciders? I contend that they
should not. Firstly, if even just a few officials at the local or state level
decide to exclude Don Trump, then the judgment in favor of Trump by other
election officials would be impaired because he would not be on the ballot in
every locale or state. It would be extra-constitutional (i.e., outside of the constitution)
should all of the officials in the U.S. vote on whether to exclude him, for all
of the officials, as a group, are not organized as a group constitutionally.
Secondly, election officials do not necessarily have expertise on what exactly
constitutes insurrection. Thirdly, they would inevitably be sued, whatever they
decide, so the U.S. Supreme Court would be the final decider anyway.
An alternative way that the high
court could wind up deciding on Trump’s eligibility would be deciding the inevitable
appeal that would be made if Trump will have been found guilty of insurrection
by a jury. It is significant that Trump had not been indicted on the charge of
insurrection even though 91 charges were leveled against him as of August,
2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department,
would have charged the former president with insurrection had evidence existed
to support that particular charge. Unlike the lawyers who teach in law schools,
Smith had a formal means—a grand jury and a court with a judge—to make the
charge, and he did not. Smith also had access to the evidence, which lawyers in
law schools did not have. So, it is odd that the lawyers who claimed that Trump
had engaged in an insurrection did so knowing that Smith had decided not to
level that charge. Even stranger would be such a lawyer presuming that one’s
opinion, whether in an interview or argued in an article in a law school’s
undergraduate publication, is sufficient for election officials to keep Trump
off their respective ballots.
In short, it could be argued that
because Trump has not even been charged with insurrection, he cannot be found
to be ineligible for office based on insurrectionist activities. It could also
be argued, however, that the inclusion of insurrection in the 14th
Amendment is a political rather than a judicial matter. Under this reading,
Congress could pass a law—rather than using the word insurrection for January 6th
in an award given to three Capitol Hill police employees—declaring that Trump
engaged in an insurrection, and the high court would decide the inevitable
constitutional challenge in court. But unlike impeaching and removing a
president from office, no constitutional language supports applying the
political process of how a bill becomes law.
Of all the chatter by experts and
non-experts alike, the fact that Jack Smith did not charge Don Trump with
having engaged in an insurrection is most salient to me in this case. To be
sure, the U.S. Supreme Court justices could find that if he is found guilty of
any of the existing charges bearing on January 6, 2020, pressuring
Georgian officials to “find” votes, or instigating false slates of electors in
a few states, that they constitute insurrectionist activities. The “finding” of votes, such as probably
happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption
in American politics, however. Even so, the justices could find on their own
that Trump is guilty of fomenting or agitating an insurrection. The justices
would need a suit to be brought to the court, however.
The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.