Plus a question about why Kamala Harris is so unpopular.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Quick hits.
- Israeli forces raided the West Bank city of Ramallah in what is being called the largest operation there in years. (The raid) Separately, a United Nations report published on Monday found evidence that sexual violence, including rape and gang rape, were committed in multiple locations on October 7 during the Hamas-led attack on Israel. (The report)
- The Supreme Court temporarily halted a Texas law that allowed local and state police to arrest and deport migrants. (The ruling)
- France passed a constitutional amendment that declared abortion a "guaranteed freedom," making them the first country to do so. (The law)
- Allen Weisselberg, the former chief financial officer for the Trump Organization, pleaded guilty to lying under oath during testimony in Trump's New York civil fraud case yesterday. His plea deal sends him back to jail but does not require him to testify at Trump's hush money trial. (The plea).
- Four former Twitter executives have sued Elon Musk for unpaid severance. Separately, Musk is suing OpenAI and CEO Sam Altman, saying they broke the company’s founding agreement.
- REMINDER: Today is Super Tuesday, with elections in over 16 states. (The voting)
Today's topic.
Trump on the ballot. On Monday, the Supreme Court ruled in a unanimous decision that states cannot disqualify former President Donald Trump from the ballot for his role in January 6, 2021. The ruling overturns a Colorado Supreme Court decision disqualifying Trump and applies to every state in the country. However, the justices were divided on the question of who can enforce Section 3 of the 14th Amendment. This ruling is unrelated to their decision to take up the question of whether Trump is immune from criminal prosecution, which we covered yesterday.
Back up: Section 3 of the 14th Amendment bars anyone from holding office who has "engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof." An ideological mix of lawyers and legal scholars has embraced the idea that Trump should be disqualified from holding office because of his actions leading up to and on January 6. In December, the Colorado Supreme Court barred Trump from the ballot, siding 4-3 with a group of voters making that argument. The majority found “clear and convincing evidence” that Trump "incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power."
At least 16 other states have seen challenges to Trump's eligibility under the 14th Amendment. In Maine, the secretary of state ruled that Trump was ineligible to appear on the ballot, but a state court judge put that ruling on hold until the Colorado case was resolved. Similarly, a judge in Illinois ruled Trump was ineligible but also put the ruling on hold until the Supreme Court gave its decision.
Now what: On Monday, the Supreme Court ruled unanimously that Colorado cannot remove Trump from the ballot. However, the justices disagreed on the reasoning. A coalition of five justices reasoned that the 14th Amendment was designed to expand the federal government's power to prevent former Confederates from returning to power after the Civil War. Before disqualifying someone under Section 3, the majority argued, there must be a determination that the provision actually applies to that person. Further, Section 5 of the 14th Amendment — which says “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article” — gives the power of that determination exclusively to Congress.
The court also argued that states being allowed to enforce Section 3 against candidates for federal office would create chaos across the country, with candidates disqualified in some states but not others.
“The result could well be that a single candidate would be declared ineligible in some states, but not others, based on the same conduct,” the court said.
The majority also argued if states were allowed to enforce Section 3, they would not be limited by Section 5 in the same way Congress would, according to SCOTUSblog. And "the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible," the justices said.
Three of the justices — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — signed a separate opinion agreeing that Trump should remain on the ballot in Colorado, but arguing that the majority should not have gone on to decide who can enforce Section 3 and how.
"The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing," they wrote. "The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an 'insurrection [and] rebellion' to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President."
Justice Amy Coney Barrett agreed that the court should not have gone so far as to rule on "the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” However, she wrote her own separate opinion that also criticized Sotomayor, Kagan, and Jackson's dissent, saying in part that it turned the temperature up when this ruling should be turning the temperature down.
The court did not address the question of whether Trump engaged in insurrection, which he had asked them to do.
Today, we're going to explore some arguments from the right and left about the decision, then my take.
What the right is saying.
- Almost all of the right supports the decision and celebrates that it was unanimous.
- Some agree with the outcome but criticize aspects of the court’s reasoning.
- Others say the court has effectively destroyed part of the 14th Amendment.
In Newsweek, Mark R. Weaver wrote “the Supreme Court has restored order in a chaotic time.”
“The high court forestalled what could have been serious constitutional confusion with the attendant partisan polemics,” Weaver said. “What Colorado and others like Maine and Illinois sought was politics by less noble means… [if] upheld, every future presidential election would hold the potential for partisan scheming to dig up the most plausible evidence that an opposing party's candidate was an insurrectionist or had given aid to the enemy through some political rhetoric or executive action.”
“But the high court said, convincingly, ‘Nothing in the Constitution requires that we endure such chaos,’” Weaver wrote. “In our collective American dictionary, federalism is a synonym for order. This decision brings it. Trump's opponents should cease their lamentations and lawfare and focus their energies on the venerable arena where final decisions are made—the presidential election.”
In National Review, Dan McLaughlin said “haste and acrimony undermine a unanimous Supreme Court.”
“The Court was right to reverse Colorado’s decision, but the Court got the law wrong, and all nine justices shirked their duty to finally adjudicate whether Trump is covered by Section 3 and whether he engaged in insurrection — both matters the Court could have resolved by clearly construing the legal terms of Section 3,” McLaughlin wrote. “The manner in which the Court resolved the case ended up giving the liberals the opportunity for some emotionally cathartic attacks on the Court and Trump even in a decision they joined.”
“The Court frets that different states could reach different results, possibly due to different state procedures. But this ignores the role of the Court itself in resolving conflicting state decisions. It is also partly an accidental feature of there being no definitive guidance from the Court on the meaning of Section 3’s operative terms,” McLaughlin said. “In the haste of all the justices to put this pre-election dispute to bed, and in the determination of the liberals to leave open an avenue for post-election guerilla lawfare against a potential second Trump administration, the Court failed in its duty.”
In The New York Times, David French argued “the Supreme Court just erased part of the Constitution.”
“The court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action,” French wrote. “But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.”
“In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.”
What the left is saying.
- The left is unsurprised by the outcome but disappointed nonetheless.
- Some argue the case was a political gift to Trump.
- Others question the originalist credentials of the court’s conservative justices.
In Vox, Ian Millhiser wrote “the Supreme Court just crushed any hope that Trump could be removed from the ballot.”
“As the Court’s three Democratic appointees write in a cosigned opinion dissenting from the majority’s reasoning, states have limited authority to decide questions that ‘implicate a uniquely important national interest’ extending beyond a State’s ‘own borders,’” Millhiser said. “Fair enough, but the majority opinion… goes much further than that. It holds that the Constitution ‘empowers Congress’ — and only Congress — to determine which individuals are disqualified from public office because they previously engaged in an insurrection.”
“Any attempt to disqualify Trump is almost certainly dead. Even if special counsel Jack Smith can amend his indictment to bring charges under the insurrection statute, the Court’s decision to slow-walk Trump’s trial means that the election will most likely be over before that trial takes place,” Millhiser wrote. “The courts, it is now crystal clear, are not going to do much of anything to prevent an insurrectionist former president from occupying the White House once again. And the Supreme Court appears to be actively running interference on Trump’s behalf.”
In New York Magazine, Elie Honig suggested “the 14th Amendment effort only ended up helping Trump.”
“It was plain from the start that the effort to disqualify Donald Trump from the 2024 ballot was doomed to fail. It was a fascinating exercise, a wild law-school hypothetical sprung to life. But now the ironic result is that a constitutional provision meant to ban insurrectionists from holding office will provide Trump with fuel for his effort to win back the White House,” Honig said. “The Supreme Court’s ruling today was no outlier. Dozens of 14th Amendment challenges to Trump had already been rejected in state and federal courts across the country.”
“The constitutional ban on insurrectionists holding office is a perfectly sound — necessary, even — policy concept. And by any commonsense application, Trump violated the clause. But the process issues that ultimately sank the effort to ban Trump from the ballot were apparent all along,” Honig wrote. “Trump’s on the 2024 ballot, just as he would’ve been without the 14th Amendment detour. He and his supporters surely will rally around a failed effort by a bunch of Northeastern, elitist law-professor types to use the courts to deny the American voters a choice and to take out the Republican front-runner.”
In The Atlantic, Adam Serwer said “the Supreme Court once again reveals the fraud of originalism.”
“The unanimous part of the decision found that states do not have the authority to disqualify candidates for federal office, the least absurd and damaging rationale for avoiding disqualification,” Serwer wrote. “Not that this should have mattered to the Court’s originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself.”
“Originalists’ preferred interpretive prisms—the plain text of the amendment, how it was understood at the time, the intent of its framers—would have led to Trump being disqualified, a result that, apparently, none of the justices liked,” Serwer said. “The conservative justices have a majority, and they may work their will. But the originalism they purport to adhere to is nothing more than a framework for reaching their preferred result in any particular circumstance.”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- I’m glad the court ruled quickly and unanimously to overturn Colorado, and I’m not surprised that they did.
- I am surprised by the argument the majority made, which seemed inconsistent with previous decisions from the majority.
- Congress shouldn’t need to pass legislation to execute a Constitutional amendment and you can bet this Congress won’t be doing that.
The last time we wrote about this, I didn't pull any punches. In December, after Colorado removed Trump from the ballot, this is what I told readers:
"I think this is the wrong decision legally, incredibly dangerous politically, and it will rightfully have close to zero chance of standing up to Supreme Court scrutiny... Everything about it is going to aid Trump in telling his supporters that the establishment will do anything to stop him... And, on top of all that, the Supreme Court is all but guaranteed to come in and overturn the ruling anyway. In fact, I'll take this moment to do one of my rare bits of political prognostication and wager that the high court rules 9-0 in Trump's favor."
I don't say that to take a victory lap, but because I got enough heat from readers when I wrote about this that I think it's worth revisiting here. To clarify, I don’t think Trump belongs on the ballot because he’s innocent of all wrongdoing, nor do I think the Supreme Court is corrupt. I wrote that the court would unanimously overrule Colorado because it seemed obvious to me that removing Trump from the ballot under Section 3 was a legal stretch and a political powder keg — and historically when those two things meet, the Supreme Court stays away.
In this case, the fundamentals seemed obviously anti-democratic and dangerous. As all nine justices agreed, states should have limited authority "‘to implicate a uniquely important national interest’ extending beyond a State’s ‘own borders.’" The idea that a state court could disqualify Trump from the ballot and effectively throw the election into chaos for the entire country doesn't and shouldn't sit right, and the court ending that charade here — in unanimous fashion — is a good thing.
What I did not successfully predict was how the court would decide to address this question. I was right that all nine justices would agree that a state cannot disqualify a presidential candidate, but I expected them to conclude that Trump did not receive the proper due process to be ruled an insurrectionist; or, that he — like all presidents — had not served as an “officer of the United States” under the purview of Section 3.
Instead, five of the justices came to that agreement by deciding that only the federal government, not the states, can disqualify candidates under Section 3 (unless Congress passes a statute authorizing states to do so). As commentators from both the left and right have argued, this ruling is in many ways the broadest and sloppiest way the court could have resolved the issue and creates a whole slew of new problems. Dan McLaughlin outlined some of them (under "What the right is saying"), including that a president's eligibility could now be challenged after he is elected.
Most pointedly, the reasoning feels odd because the entirety of the 14th Amendment is "self-executing" now except for Section 3. As Mark Joseph Stern put it, "Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create 'a special rule' for the insurrection clause alone?" Amy Coney Barrett seemed to agree about how messy the majority made this, though she penned her own opinion because she didn't like the tone of the liberal justices, who dissented on the reasoning in their own brief.
It's also worth noting, as McLaughlin did, that this same court has given states primacy in how to run elections throughout U.S. history and has affirmed that authority very recently. In 2023, in Moore v. Harper, the Supreme Court limited federal courts in supervising state courts in rulings affecting federal redistricting. Now it says that granting states this kind of power would "invert the Fourteenth Amendment's rebalancing of federal and state power." On the surface, the ideological inconsistency here feels hypocritical.
The end result is that nobody seems particularly happy. A lot of people on the right are upset the court didn’t clearly and narrowly end this ruling. A lot of people on the left were given ammunition to claim the court is covering for Trump and is being inconsistent in its jurisprudence. Although the court reached the right decision, the path it took to get there seems like the most convoluted one possible. Sure, it leaves the door open for Congress to take action and clarify all of this with legislation, but a Constitutional amendment shouldn’t require legislation for its own enforcement — and nothing about how this Congress has acted (or how previous Congresses have picked up the reins when the court seemingly begged them to) makes me feel encouraged that they will effectively use the power the court has given them.
Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.
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Tickets to our event in New York City are selling fast and we're approaching a sellout! Reminder: We are bringing our newsletter and podcast live to the stage on April 17 in New York. If you are in New York City or looking for a reason to visit, this is the one. Tickets here.
Your questions, answered.
Q: Why is Kamala Harris so unpopular? Is it because of gender/race? The border? What makes a good vice president? Or what makes a bad vice president?
— Anonymous from Salinas, California
Tangle: It’s hard to define what makes a good vice president. But there is a frank and surprisingly engrossing report from the Brookings Institute that covers that topic, which I’m going to draw from below. Up until the nineties, a good vice president was simply someone who could draw votes from a swing state to help the president get elected. That changed with Al Gore (Bill Clinton’s VP), Brookings argued, who introduced more of a “partnership model.”
Since Gore’s term, every effective vice president in the modern “partnership model” era has helped on foreign policy. Even Vice President Mike Pence, who may have served primarily as electoral cover for Trump, had some role in foreign policy. President Biden, of course, is a longtime senator and two-term foreign-policy-focused vice president. That didn’t leave Harris, a former prosecutor, much room to be of service in that area.
Which brings us to Kamala Harris’s unpopularity. I’m sure that biases against minorities and women in politics have affected the way a lot of people see her, but that can’t explain just how unpopular she is. To me, a lot of it has to do with what issues she’s been handed. The biggest thing she’s taken ownership of since the beginning of Biden’s term has been the one thing that’s been dragging him down the most: The southern border. And to be fair to Harris, the way her strengths align with Biden’s has made it hard for her to find an area of focus that capitalizes on those strengths. Being handed a crisis that very few presidents are able to navigate is not exactly ideal.
Still, I don’t think those are her biggest problems. The truth is she has always had a polarizing brand among Democrats. From “Kamala the cop” to her flip-flopping to the way many people view her as inauthentic in interviews with the press, by 2020 she just hadn’t entered the kind of stratosphere needed to win a presidential election. After her disastrous interview with NBC’s Lester Holt in 2021, “White House officials — including some in her own office — noted that she all but went into a bunker for about a year, avoiding many interviews out of what aides said was a fear of making mistakes and disappointing Mr. Biden,” according to reporting from The New York Times.
Lastly, and maybe most importantly, her lack of public involvement on some issues reads as a lack of trust from the president. Just a year into her term, Edward-Isaac Dovere and Jasmine Wright penned a brutal expose in CNN: “Worn out by what they see as entrenched dysfunction and lack of focus, key West Wing aides have largely thrown up their hands at Vice President Kamala Harris and her staff – deciding there simply isn’t time to deal with them right now,” they wrote.
While voters might not have day-to-day insight, I think a lot of people are able to glean that her office isn’t really looped-in with the president’s, and I think the totality of all these things has done some serious damage to her reputation.
Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.
Under the radar.
New federal guidelines released by the CDC last week reduce the suggested isolation time for anyone who contracts Covid-19. The new guidelines state that people who are sick should stay home and away from other people, but also that if someone has been fever-free and without symptoms for 24 hours they can limit contact with others, wear a mask, and avoid indoor spaces without fully quarantining. If their symptoms come back, the clock starts over. Previously, CDC guidelines had said people who test positive for Covid-19 should stay home for at least five days and isolate for 10 days. PBS has the story.
Numbers.
- 25. The number of days between the start of oral arguments on whether Donald Trump should be disqualified from state ballots under the 14th Amendment and the Supreme Court’s ruling on the case.
- 36. The number of states where formal challenges to Trump’s presidential candidacy have been filed.
- 14. The number of states won by Trump in the 2020 election where a formal challenge to his 2024 candidacy has been filed (in addition to Maine, where Trump won one of the state’s electoral votes in 2020).
- 19. The number of states in which the formal challenge to Trump’s candidacy has already been dismissed or rejected.
- 50%. The percentage of Americans who said they were opposed to the Supreme Court overturning the Colorado decision to disqualify Trump from the ballot in a February 2024 poll from Marquette Law School.
- 30%. The percentage of Americans who said the Supreme Court should remove Trump from the ballot in all states in a January 2024 poll from ABC News/Ipsos.
The extras.
- One year ago today we published a Sunday announcement about our new partnership with DailyChatter.
- The most clicked link in yesterday’s newsletter was the Supreme Court decision to allow Trump to appear on state ballots.
- Nothing to do with politics: Tax season is here — which states have the highest and lowest tax rates?
Yesterday’s poll: 68% of the 644 Tangle readers who responded to our poll on Trump’s immunity case opposed the immunity argument and the Supreme Court’s timing. “I get it, the judiciary shouldn't conform itself to the political schedule. But come on, this is too consequential to dally on,” one respondent said.
What do you think of the Supreme Court’s decision to overturn Colorado’s decision to bar Trump from the state’s ballot? Let us know!
Have a nice day.
Elizabeth Christensen, a recently divorced mother of two, matched with a man named Joshua Colbert on the Hinge dating app in April 2023. That’s not that abnormal, but as the two chatted they discovered they grew up in the same town. Not only that, but they were born on the same day, at the same hospital. And not only that, but they were kindergarten classmates. Elizabeth’s parents dug up old videos that showed the two of them together, and at one point Elizabeth’s mom zoomed in on Joshua before panning back to her daughter. “A mother's intuition, I guess,” Joshua added. Five months later, they tied the knot. CBS News has the story.
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