Tonight a major court ruling came down, dealing an unexpected and massive financial blow to a very controversial billionaire. Sound familiar?
However, for once Trump was uninvolved. Instead the news came from the Delaware Chancery Court, ruling that Elon Musk’s 2018 pay package from Tesla – which when granted had a fair value estimated at $2.6 billion but with a very wide range of potential outcomes, and has since proven to be worth over $50 billion – should be cancelled on grounds of, in effect, self-dealing.
Still nothing from Judge Engoron, or the D.C. Circuit. Engoron had said on January 11th that he would try to deliver his ruling by January 31st, so we’ll see what news tomorrow brings.
Amicus briefs in support of the decision below in Trump v. Anderson have started to trickle in to SCOTUS, prior to tomorrow’s deadline. Perhaps the most interesting of the early submissions is from a group of 20 former senior officials in Republican administrations, headlined by former Judge Michael Luttig; the next most familiar name in the group, at least these days, is attorney George Conway.
The Luttig brief paints a very compelling picture about how, in principle, the disqualification standard from Section 3 of the 14th Amendment is intended to operate:
“To summarize, under the Electors Clause and federalism, state courts and election officials initially have authority to adjudicate whether a candidate for President is disqualified by the Constitution. Next, under Article III’s authorization of appellate jurisdiction and 28 U.S.C. § 1257, this Court reviews such a ruling and makes the final judicial decision whether a presidential candidate is disqualified. Finally, under the Supremacy Clause, the Supreme Court’s ruling is binding in all 50 States.“
In short, per Luttig’s view the system so far has functioned as intended: A state took action under its own laws to determine whether Trump was disqualified under Section 3; it concluded he was; Trump appealed directly to SCOTUS; and now, urges Luttig, it is the responsibility of SCOTUS to make a nationally binding determination as to whether Trump is disqualified under Section 3.
Luttig also argues forcefully that, contrary to views expressed not only in the Amar brothers’ amicus brief but also in the briefs of some of Trump’s amici (including, separately, Senator Cruz and former Representative Meijer), Congress does not have an independent ability to determine whether Trump is disqualified under Section 3:
“[T]here is no textual commitment by the Constitution to Congress of the power to adjudicate a presidential candidate’s disputed qualifications. The constitutional text shows the exact opposite. … [I]f Congress has unreviewable power over Section 3 disqualifications, as some advocate … that would lack all the safeguards and checks of the rule of law, federalism, and separation of powers. … Nothing could be more contrary to federalism and separation of powers than giving a bare majority in Congress such partisan power with no possibility of veto or review by this Court.”
Having built the legal argument that it is the responsibility of SCOTUS to make a substantive ruling on SCOCO’s finding that Trump is disqualified under Section 3, the Luttig brief then goes on to argue that this finding was correct, and hence that SCOTUS should affirm the ruling below.
Looking at some of the other new amicus briefs, it’s interesting to see people coming forth to present views through their own very specific lens. We have a brief from a number of First Amendment legal scholars, focused solely on rebutting the assertion made by Trump and others that invoking Section 3 to disqualify Trump would violate free speech and/or free association rights; a brief from an African-American studies professor, focused in part on refuting the assertion made by some of Trump’s amici that January 6th was no more an insurrection than was the prior year’s Black Lives Matter protests in the wake of George Floyd; and a brief from three former Republican governors focusing on the importance of oaths in American governance.
To my knowledge, neither former Representative Cheney nor former Representative Kinzinger – the two now-excommunicated Republicans who served on the House January 6th Committee – have yet signed on to an amicus brief. I imagine their names will be seen in tomorrow’s submissions, and I am eager to see what arguments they advance.