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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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EXCLUSIVE: ICE says El Paso detention facility will stay open under new contractor after $1.2B deal scrapped

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EXCLUSIVE: ICE says El Paso detention facility will stay open under new contractor after .2B deal scrapped

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EXCLUSIVE: Immigration and Customs Enforcement (ICE) said Camp East Montana in El Paso, Texas will remain open and is undergoing an operational upgrade, Fox News Digital has learned.

“Camp East Montana is NOT closing, quite the opposite,” an ICE spokesperson exclusively told Fox News Digital Tuesday.

“Rather, ICE has contracted with a new provider following Secretary Noem’s termination of the old contract inherited from the Department of War. ICE is always looking at ways to improve our detention facilities to ensure we are providing the best care to illegal aliens in our custody.”

Camp East Montana is photographed Friday, March 6, 2026, in El Paso, Texas. (Omar Ornelas/El Paso Times / USA TODAY NETWORK via Imagn Images)

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The spokesperson said the new contract will allow the facility to maintain what the agency described as the “highest detention standards” while expanding oversight.

According to ICE, the new contractor will also provide increased on-site medical care, additional staffing and a “PRECISE quality assurance surveillance plan.”

The agency said the updated agreement also strengthens ICE’s direct oversight of operations at the El Paso-area facility.

“Far from closing, Camp East Montana is upgrading,” the spokesperson said.

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El Paso immigration facility faces scrutiny but ICE says Camp East Montana is upgrading, not closing, after the $1.2 billion contract termination. (Omar Ornelas/El Paso Times / USA TODAY NETWORK via Imagn Images)

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The news that the facility will remain open comes after The Washington Post reported that the facility could face closure amid scrutiny over operations.

A document was distributed to ICE staff, the Post reports, indicated that the agency was drafting a letter to terminate the facility’s $1.2 billion contract at an unspecified date.

ICE officials, however, characterized the contract termination as a deliberate effort by Noem to raise standards and improve services.

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Camp East Montana is photographed Friday, March 6, 2026, in El Paso, Texas, as a bus enters the detention center.
(Omar Ornelas/El Paso Times / USA TODAY NETWORK via Imagn Images)

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The facility, located at Fort Bliss in Texas, has been used to house thousands of detainees as part of the Trump administration’s immigration enforcement efforts.

ICE did not immediately provide details on the identity of the new contractor or the timeline for full implementation.

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War with Iran fuels Russian oil boom — and trouble for Ukraine

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War with Iran fuels Russian oil boom — and trouble for Ukraine

Russia is emerging as one of the few early economic beneficiaries of the war with Iran, as disruptions to energy infrastructure drive up demand for Russian exports and the world casts its gaze to the Middle East and away from Moscow’s war in Ukraine.

The U.S. and its European counterparts slapped severe sanctions on Russia in March 2022, barely a month into Russian President Vladimir Putin’s full-scale invasion of Ukraine. The effect was a stranglehold on Russia’s exports, depriving Putin’s war effort of at least $500 billion, experts say. But over the last week, as President Trump’s war in the Middle East choked energy markets worldwide, the White House began easing its restrictions on Moscow.

“It is traitorous conduct for you to help Russia,” California Rep. Ted Lieu (D-Torrance) said on X, demanding the Trump administration reverse course. “Russia is giving intelligence info to Iran that helps Iran target American forces.”

Crude droplets rained over Tehran after Israeli airstrikes decimated oil depots, draping the Iranian capital in a dense smog. Iranian counterattacks have also targeted refineries and oil fields in Saudi Arabia and Bahrain. Crude oil prices have surged, and traffic through the Strait of Hormuz has all but ceased, sending energy importers in search of alternate sources.

Those spikes are giving Russia, one of the world’s largest oil and gas exporters, a rare advantage. After spending a decade as the world’s most sanctioned nation over his aggression in Ukraine, Putin is finally starting to regain some leverage in global markets.

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“In the current economic situation, if we refocus now on those markets that need increased supplies, we can gain a foothold there,” Putin said at a meeting at the Kremlin on Monday, according to Russian state media. “It’s important for Russian energy companies to take advantage of the current situation.”

On March 4, the Treasury Department issued a temporary 30-day waiver allowing Indian refiners to purchase Russian oil. The appeal by the Trump administration was described as a way to ease demand for Mideast oil, but was criticized as a reversal of sanctions placed against Putin meant to deny him the capital needed to fund his occupation of eastern Ukraine.

Now, Moscow is poised to press that advantage further, after Trump said Monday he will further lift sanctions on oil-producing countries to ease the trade friction and reintroduce additional oil and gas supplies. The only countries with U.S. oil sanctions are Russia, Iran and Venezuela.

“So, we have sanctions on some countries. We’re going to take those sanctions off until this straightens out,” Trump said at a news conference at his golf club in Doral, Fla. “Then, who knows, maybe we won’t have to put them on — they’ll be so much peace.”

The surprise concession to Moscow comes as reports suggest Russia is assisting Iran in targeting U.S. personnel.

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Trump’s announcement followed an unscheduled hourlong call with Putin about the situation in the Middle East.

The war has also set the stage for Russia to make gains in Ukraine, as hostilities draw the global spotlight away from Kyiv and its struggle to hold back the bigger Russian army. U.S.-brokered talks between the two adversaries have been sidelined as Washington shifts focus to its war in Iran.

“At the moment, the partners’ priority and all attention are focused on the situation around Iran,” Ukrainian President Volodymyr Zelensky said on X. “We see that the Russians are now trying to manipulate the situation in the Middle East and the Gulf region to the benefit of their aggression.”

Putin is unlikely to intervene militarily on Iran’s behalf, according to Robert English, an international foreign policy expert at USC. Instead, Putin is expected to play his position carefully, reap the economic rewards, and keep focused firmly on Ukraine at a time when key air defense systems are diverted from Ukraine to the Persian Gulf.

“Russia is winning the Iran-U.S.-Israel war, at least so far. Oil and natural gas prices have soared, filling Putin’s Ukraine war chest,” he said. “Russia is gathering forces for a big spring offensive in Eastern Ukraine, and it’s not even front-page news.”

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Ukraine has dispatched drone interceptors and ordered its anti-drone experts to pivot from their war with Russia to help Western allies help intercept Iranian attacks. Zelensky’s allegiance may not pay off, English said.

“When will Ukraine see the benefits of helping the U.S. with anti-drone technology? No time soon, apparently,” he said.

Even several weeks of interruption in Gulf energy supplies could bring the largest windfall to Russia, the Associated Press reported, citing energy analysts.

The economic turmoil caused by the war has exposed vulnerabilities in Europe’s energy system, particularly its lingering dependence on Russian fuel.

Despite sanctions, the European Union remains a major purchaser of Russian natural gas and crude oil. Russian gas accounted for approximately 19% of E.U. gas imports in 2025. Allied Europeans have agreed to completely stop importing Russian liquefied natural gas, oil and pipeline gas by late 2027.

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Putin expressed no desire Monday to rescue the European market now that U.S.-Israeli escalations and Iranian retaliation have choked oil production and shipping. The Russian president instead proposed to divert volumes away from the European market “to more promising areas” like the Asia-Pacific region, Slovakia and Hungary, which he said were “reliable counterparties.”

European leaders have been criticized for being “stunned, sidelined, and disunited” since hostilities began in late February. Excluded from the initial military planning by the U.S. and Israel, Europe entered the conflict with gas storage at only 30% capacity, the lowest levels in years. Instead of bold action, English said, European leaders have quarreled over internal divisions and rivalries.

“Sky-high energy prices are the underlying cause of many of these frictions, as Europe struggles now more than ever to find affordable alternatives to the cheap Russian petroleum,” English said.

Antonio Costa, president of the European Council, told European leaders in Brussels on Tuesday that rising energy prices and the world’s shifting attention risk strengthening the Kremlin at a critical moment in the war in Ukraine.

“So far, there is only one winner in this war,” Costa said. “Russia.”

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Trump stirs GOP primary drama with visit to Massie’s Kentucky home turf

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Trump stirs GOP primary drama with visit to Massie’s Kentucky home turf

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President Donald Trump is taking his feud with Rep. Thomas Massie, R-Ky., to the libertarian lawmaker’s home turf on Wednesday.

Trump is expected to hold an event in Hebron, Kentucky, on Wednesday, the Republican Party of Kentucky announced on social media Monday. It’s located in the northern part of the state’s 4th Congressional District, which Massie represents.

Massie’s primary rival, Ed Gallrein, will attend the Hebron event, his campaign confirmed to Fox News Digital on Tuesday, while deferring all other questions on the matter to the White House.

Massie himself will miss the event due to a previously scheduled official engagement, his spokesperson told Fox News Digital.

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KHANNA AND MASSIE THREATEN TO FORCE A VOTE ON IRAN AS PROSPECT OF US ATTACK LOOMS

President Donald Trump will be visiting Rep. Thomas Massie’s congressional district on Wednesday. (Win McNamee/Getty Images; Nathan Posner/Anadolu via Getty Images)

When asked about the visit, White House spokeswoman Liz Huston told Fox News Digital, “President Trump will visit the great states of Ohio and Kentucky on Wednesday to tout his economic victories and detail his Administration’s aggressive, ongoing efforts to lower prices and make America more affordable.”

The president has thrown his considerable influence behind Gallrein to unseat Massie after the GOP lawmaker publicly defied Trump on multiple occasions.

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Massie most recently was one of two House Republicans to vote to stop Trump’s joint operation in Iran with Israel, though the legislation was successfully blocked by the majority of GOP lawmakers and a handful of Democrats.

Ed Gallrein, left, seen with President Donald Trump in the Oval Office at the White House. (Ed Gallrein congressional campaign)

He was also one of two Republicans to vote against Trump’s “big, beautiful bill” last year.

Trump in turn has hurled a slew of personal attacks against Massie, including calling him “weak and pathetic” in a statement endorsing Gallrein in October.

“He only votes against the Republican Party, making life very easy for the Radical Left. Unlike ‘lightweight’ Massie, a totally ineffective LOSER who has failed us so badly, CAPTAIN ED GALLREIN IS A WINNER WHO WILL NOT LET YOU DOWN,” Trump posted on Truth Social at the time, one of numerous criticisms targeting the Kentucky Republican through the years.

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He called Massie the “worst Republican congressman” in July amid Massie’s bipartisan push to force the Department of Justice (DOJ) to release its files on Jeffrey Epstein.

Then-Rep. Marjorie Taylor Greene, a Republican from Georgia, Rep. Thomas Massie, a Republican from Kentucky, and Rep. Ro Khanna, a Democrat from California, during a news conference outside the U.S. Capitol in Washington, D.C., on Tuesday, Nov. 18, 2025. (Graeme Sloan/Bloomberg via Getty Images)

But Massie has so far appeared to defy political gravity despite making political enemies out of both Trump and House GOP leaders.

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He handily defeated multiple primary challengers in 2024 and 2022, despite public feuds with Trump, and has served his district since 2012.

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Gallrein is a retired Navy SEAL and farmer who launched his campaign days after Trump made his endorsement. Their primary election day is May 19.

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