Antonin Scalia might help disqualify Trump from beyond the grave
Donald Trump's opponents are turning to a surprising source to make their case for keeping the former president off the 2024 ballot.
Liberal groups are citing a 2014 concurring opinion from the late U.S. Supreme Court justice Antonin Scalia, who died in 2016, as evidence that the 14th Amendment's insurrectionist clause applies to former presidents as they seek a ruling that would disqualify Trump from the White House over his role in the Jan. 6 insurrection, reported CNN.
“Invoking Scalia is kind of an attempt to cite some moral authority for one of the court’s great originalists,” said Derek Muller, a Notre Dame Law School professor who's an expert on the case. “They’re not just citing anyone.”
Trump has argued that presidents are not "officers" of the United States, a position he limits only to officials appointed by the chief executive, so the ban should not apply to him.
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But a series of "friend of the court" briefs filed Wednesday by liberal groups and former Republican officials cited Scalia – in a concurring opinion joined by Chief Justice John Roberts and two other conservatives – to argue that officers of the United States must be appointed by the president, “except where” the Constitution “provides otherwise.”
The Scalia concurrence involved a dispute between the teamsters union and a soda distributor, and Trump's opponents argue that “officials in every branch of government referred to the president as an officer of the United States.”
Other Trump opponents have pointed to an opinion written by justice Neil Gorsuch in 2012, when he was an appeals court judge, that held states were permitted to exclude candidates from the ballot if they were determined to be constitutionally ineligible.
“Many times, members of the court greatly respect each other but will disagree with what they’ve had to say,” Muller said. “But for public consumption, it certainly can be persuasive.”