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Column: The Supreme Court has 6 options for keeping Trump on the ballot. All of them are flawed

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Column: The Supreme Court has 6 options for keeping Trump on the ballot. All of them are flawed

I recently surmised that in considering former President Trump’s eligibility to run for office under the 14th Amendment, the U.S. Supreme Court will seek a national solution that applies to all 50 states. That dictates a reversal of the Colorado Supreme Court’s disqualification of Trump for engaging in insurrection, on grounds that preclude other states from following suit.

This case is among the rare instances in which the court probably should factor broad social and political issues into its opinion. And Chief Justice John G. Roberts Jr. will be looking for a rationale that can command the greatest possible consensus and minimize the fallout from a divided decision.

So what are the court’s options for overturning Colorado? I count six possible grounds, each of them flawed to one degree or another.

Trump did not engage in insurrection: The court could differ with the Colorado court on this point in two ways.

First, it could find that Trump’s role in the events of Jan. 6, 2021, did not constitute incitement of imminent lawlessness and was therefore protected by the 1st Amendment. Trump argues that his “only explicit instructions called for protesting ‘peacefully and patriotically’” and other bland encouragements. But it’s virtually inconceivable to me that the court would side with Trump on this dubious characterization of events in the absence of a developed factual record.

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Alternatively, the court could agree with Trump’s argument that the definition of “insurrection” under the 14th Amendment should be limited to a conflict such as the Civil War, in keeping with the provision’s historical context. By contrast, Jan. 6 was just a political protest that “turned violent,” his lawyers argue.

Adopting this line would drastically narrow the reach of Section 3 of the amendment, leaving it close to a constitutional nullity. Further, it would contradict not just the Colorado courts’ persuasive analysis but also historical practice. The courts and Congress have disqualified federal officials based on much less, among them Victor Berger, whom Congress refused to seat based on his socialist and anti-World War I views.

The justices lack sufficient standards for applying the amendment: Trump’s lead argument is that without a statute passed by Congress to provide guidance on Section 3 of the 14th Amendment, “courts lack judicially manageable standards for resolving disputes over presidential qualifications.” This implicitly invokes the Supreme Court’s rationale for taking itself out of the business of checking extreme partisan gerrymandering.

One problem with this argument is that there is nothing inscrutable about the ban on insurrectionists. Courts determine issues of similar complexity all the time.

Second, the constraint invoked is one the Supreme Court adopted for itself; it doesn’t prevent state courts from acting. The Supreme Court would thereby abandon the field and allow the states to step into the breach, an outcome it’s unlikely to welcome.

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The section requires congressional authorization: This claim is subtly but importantly different from the previous one. It’s that Section 3 is not “self-executing” but rather requires congressional action to be applied by any court, which would be in keeping with prevalent historical practice.

But it’s well-established that the powerhouse equal protection and due process provisions in Section 1 of the same amendment have great force without regard to congressional action. It’s hard to see how that principle could stand if the court found that Section 3 has no such force on its own. This argument could also encourage a future Democratic Congress to disqualify Trump from holding office.

The amendment prohibits holding office, not running for office: It is uncontroversial that Section 3 imposes a qualification for holding office, much like an age, residency or citizenship requirement. But a state certainly can prevent an unqualified candidate — for example, one who will not be 35 years old at the time she would assume the presidency — from seeking an office.

The Colorado courts were out of step with state law: This invokes a widely discredited theory that first emerged in Bush vs. Gore: that the Constitution’s electors clause allows the federal courts to reverse state court rulings that significantly depart from the dictates of state law. This questionable approach would alienate the court’s progressives. Moreover, there is no plausible suggestion that the Colorado Supreme Court significantly departed from the requirements of state law.

The president is not a federal “officer” under the amendment: The Colorado trial court seized on this reading to back away from the precipice of disqualifying Trump. But it has problems as a matter of textual interpretation and sensible policy. Both the Colorado Supreme Court and Maine’s secretary of state exposed its weaknesses.

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That sums up the Supreme Court’s unenviable hand, which doesn’t contain as much as a face card, let alone an ace. The reasoning that does the least damage to other areas of the law and is most tailored to the current case may well be that the president is not an officer. The other least implausible option, notwithstanding the tension with the first section of the 14th Amendment, would be to require congressional action to effectuate Section 3.

Neither is particularly convincing, and the other possibilities are less so. And yet if the court is to impose a uniform federal solution keeping Trump on the ballot in all 50 states, it’s clear that it will have to settle on some deeply imperfect rationale.

Harry Litman is the host of the “Talking Feds” podcast. @harrylitman

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AOC accuses Vance of believing ‘American people should be assassinated in the street’

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AOC accuses Vance of believing ‘American people should be assassinated in the street’

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Democratic Rep. Alexandria Ocasio-Cortez is leveling a stunning accusation at Vice President JD Vance amid the national furor over this week’s fatal shooting in Minnesota involving an ICE agent.

“I understand that Vice President Vance believes that shooting a young mother of three in the face three times is an acceptable America that he wants to live in, and I do not,” the four-term federal lawmaker from New York and progressive champion argued as she answered questions on Friday on Capitol Hill from Fox News and other news organizations.

Ocasio-Cortez spoke in the wake of Wednesday’s shooting death of 37-year-old Renee Nicole Good after she confronted ICE agents from inside her car in Minneapolis.

RENEE NICOLE GOOD PART OF ‘ICE WATCH’ GROUP, DHS SOURCES SAY

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Members of law enforcement work the scene following a suspected shooting by an ICE agent during federal operations on January 7, 2026, in Minneapolis, Minnesota. (Stephen Maturen/Getty Images)

Video of the incident instantly went viral, and while Democrats have heavily criticized the shooting, the Trump administration is vocally defending the actions of the ICE agent.

HEAD HERE FOR LIVE FOX NEWS UPDATES ON THE ICE SHOOTING IN MINNESOTA

Vance, at a White House briefing on Thursday, charged that “this was an attack on federal law enforcement. This was an attack on law and order.”

“That woman was there to interfere with a legitimate law enforcement operation,” the vice president added. “The president stands with ICE, I stand with ICE, we stand with all of our law enforcement officers.”

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And Vance claimed Good was “brainwashed” and suggested she was connected to a “broader, left-wing network.”

Federal sources told Fox News on Friday that Good, who was a mother of three, worked as a Minneapolis-based immigration activist serving as a member of “ICE Watch.”

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Ocasio-Cortez, in responding to Vance’s comments, said, “That is a fundamental difference between Vice President Vance and I. I do not believe that the American people should be assassinated in the street.”

But a spokesperson for the vice president, responding to Ocasio-Cortez’s accusation, told Fox News Digital, “On National Law Enforcement Appreciation Day, AOC made it clear she thinks that radical leftists should be able to mow down ICE officials in broad daylight. She should be ashamed of herself. The Vice President stands with ICE and the brave men and women of law enforcement, and so do the American people.”

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Contributor: Don’t let the mobs rule

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Contributor: Don’t let the mobs rule

In Springfield, Ill., in 1838, a young Abraham Lincoln delivered a powerful speech decrying the “ravages of mob law” throughout the land. Lincoln warned, in eerily prescient fashion, that the spread of a then-ascendant “mobocratic spirit” threatened to sever the “attachment of the People” to their fellow countrymen and their nation. Lincoln’s opposition to anarchy of any kind was absolute and clarion: “There is no grievance that is a fit object of redress by mob law.”

Unfortunately, it seems that every few years, Americans must be reminded anew of Lincoln’s wisdom. This week’s lethal Immigration and Customs Enforcement standoff in the Twin Cities is but the latest instance of a years-long baleful trend.

On Wednesday, a 37-year-old stay-at-home mom, Renee Nicole Good, was fatally shot by an ICE agent in Minneapolis. Her ex-husband said she and her partner encountered ICE agents after dropping off Good’s 6-year-old at school. The federal government has called Good’s encounter “an act of domestic terrorism” and said the agent shot in self-defense.

Suffice it to say Minnesota’s Democratic establishment does not see it this way.

Minneapolis Mayor Jacob Frey responded to the deployment of 2,000 immigration agents in the area and the deadly encounter by telling ICE to “get the f— out” of Minnesota, while Gov. Tim Walz called the shooting “totally predictable” and “totally avoidable.” Frey, who was also mayor during the mayhem after George Floyd’s murder by city police in 2020, has lent succor to the anti-ICE provocateurs, seemingly encouraging them to make Good a Floyd-like martyr. As for Walz, he’s right that this tragedy was eminently “avoidable” — but not only for the reasons he thinks. If the Biden-Harris administration hadn’t allowed unvetted immigrants to remain in the country without legal status and if Walz’s administration hadn’t moved too slowly in its investigations of hundreds of Minnesotans — of mixed immigration status — defrauding taxpayers to the tune of billions of dollars, ICE never would have embarked on this particular operation.

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National Democrats took the rage even further. Following the fateful shooting, the Democratic Party’s official X feed promptly tweeted, without any morsel of nuance, that “ICE shot and killed a woman on camera.” This sort of irresponsible fear-mongering already may have prompted a crazed activist to shoot three detainees at an ICE facility in Dallas last September while targeting officers; similar dehumanizing rhetoric about the National Guard perhaps also played a role in November’s lethal shooting of a soldier in Washington, D.C.

Liberals and open-border activists play with fire when they so casually compare ICE, as Walz previously has, to a “modern-day Gestapo.” The fact is, ICE is not the Gestapo, Donald Trump is not Hitler, and Charlie Kirk was not a goose-stepping brownshirt. To pretend otherwise is to deprive words of meaning and to live in the theater of the absurd.

But as dangerous as this rhetoric is for officers and agents, it is the moral blackmail and “mobocratic spirit” of it all that is even more harmful to the rule of law.

The implicit threat of all “sanctuary” jurisdictions, whose resistance to aiding federal law enforcement smacks of John C. Calhoun-style antebellum “nullification,” is to tell the feds not to operate and enforce federal law in a certain area — or else. The result is crass lawlessness, Mafia-esque shakedown artistry and a fetid neo-confederate stench combined in one dystopian package.

The truth is that swaths of the activist left now engage in these sorts of threats as a matter of course. In 2020, the left’s months-long rioting following the death of Floyd led to upward of $2 billion in insurance claims. In 2021, they threatened the same rioting unless Derek Chauvin, the officer who infamously kneeled on Floyd’s neck, was found guilty of murder (which he was, twice). In 2022, following the unprecedented (and still unsolved) leak of the draft majority opinion in the Dobbs vs. Jackson Women’s Health Organization Supreme Court case, abortion-rights activists protested outside many of the right-leaning justices’ homes, perhaps hoping to induce them to change their minds and flip their votes. And now, ICE agents throughout the country face threats of violence — egged on by local Democratic leaders — simply for enforcing federal law.

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In “The Godfather,” Luca Brasi referred to this sort of thuggery as making someone an offer that he can’t refuse. We might also think of it as Lincoln’s dreaded “ravages of mob law.”

Regardless, a free republic cannot long endure like this. The rule of law cannot be held hostage to the histrionic temper tantrums of a radical ideological flank. The law must be enforced solemnly, without fear or favor. There can be no overarching blackmail lurking in the background — no Sword of Damocles hovering over the heads of a free people, ready to crash down on us all if a certain select few do not get their way.

The proper recourse for changing immigration law — or any federal law — is to lobby Congress to do so, or to make a case in federal court. The ginned-up martyrdom complex that leads some to take matters into their own hands is a recipe for personal and national ruination. There is nothing good down that road — only death, despair and mobocracy.

Josh Hammer’s latest book is “Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.” This article was produced in collaboration with Creators Syndicate. X: @josh_hammer

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Ideas expressed in the piece

  • Democrats and activist left are perpetuating a dangerous “mobocratic spirit” similar to the mob law that Lincoln warned against in 1838, which threatens the rule of law and national unity[1]
  • The federal government’s characterization of the incident as self-defense by an ICE agent is appropriate, while local Democratic leaders are irresponsibly encouraging anti-ICE protesters to view Good as a martyr figure like George Floyd[1]
  • Dehumanizing rhetoric comparing ICE to the Gestapo is reckless fear-mongering that has inspired actual violence, including a shooting at an ICE facility in Dallas and the fatal shooting of a National Guard soldier[1]
  • The shooting was “avoidable” not because of ICE’s presence, but because the Biden-Harris administration allowed undocumented immigrants to remain in the country without legal status and state authorities moved too slowly investigating immigrant fraud[1]
  • Sanctuary jurisdictions that resist federal law enforcement represent neo-confederate “nullification” and constitute crass lawlessness and Mafia-style extortion, effectively telling federal agents they cannot enforce the law or face consequences[1]
  • The activist left employs threats of violence as systematic blackmail, evidenced by 2020 riots following Floyd’s death, threats surrounding the Chauvin trial, protests at justices’ homes during the abortion debate, and now threats against ICE agents[1]
  • Changing immigration policy must occur through Congress or federal courts, not through mob rule and “ginned-up martyrdom complexes” that lead to personal and national ruination[1]

Different views on the topic

  • Community members who knew Good rejected characterizations of her as a domestic terrorist, with her mother describing her as “one of the kindest people I’ve ever known,” “extremely compassionate,” and someone “who has taken care of people all her life”[1]
  • Vigil speakers and attendees portrayed Good as peacefully present to watch the situation and protect her neighbors, with an organizer stating “She was peaceful; she did the right thing” and “She died because she loved her neighbors”[1]
  • A speaker identified only as Noah explicitly rejected the federal government’s domestic terrorism characterization, saying Good was present “to watch the terrorists,” not participate in terrorism[1]
  • Neighbors described Good as a loving mother and warm family member who was an award-winning poet and positive community presence, suggesting her presence during the incident reflected civic concern rather than radicalism[1]
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Trump plans to meet with Venezuela opposition leader Maria Corina Machado next week

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Trump plans to meet with Venezuela opposition leader Maria Corina Machado next week

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President Donald Trump said on Thursday that he plans to meet with Venezuelan opposition leader Maria Corina Machado in Washington next week.

During an appearance on Fox News’ “Hannity,” Trump was asked if he intends to meet with Machado after the U.S. struck Venezuela and captured its president, Nicolás Maduro.

“Well, I understand she’s coming in next week sometime, and I look forward to saying hello to her,” Trump said.

Venezuelan opposition leader Maria Corina Machado waves a national flag during a protest called by the opposition on the eve of the presidential inauguration, in Caracas on January 9, 2025. (JUAN BARRETO/AFP via Getty Images)

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This will be Trump’s first meeting with Machado, who the U.S. president stated “doesn’t have the support within or the respect within the country” to lead.

According to reports, Trump’s refusal to support Machado was linked to her accepting the 2025 Nobel Peace Prize, which Trump believed he deserved.

But Trump later told NBC News that while he believed Machado should not have won the award, her acceptance of the prize had “nothing to do with my decision” about the prospect of her leading Venezuela.

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