>>> WELCOME BACK TO AMERICA DECIDES. THE SUPREME COURT HEARD ARGUMENTS TODAY OVER WHETHER OR NOT FORMER PRESIDENT TRUMP IS ELIGIBLE TO BE ON THE PRIMARY BALLOT IN COLORADO. COLORADO'S SUPREME COURT KICKED HIM OFF THE BALLOT, AT LEAST TEMPORARILY, CITING THE SO-CALLED INSURRECTION CLAUSE OF THE 14th AMENDMENT. IT'S SECTION THREE OF THE 14th AMENDMENT, WHICH SAYS IN PART, NO PERSON SHALL HOLD ANY OFFICE WHO HAVING PREVIOUSLY TAKEN AN OATH TO SUPPORT THE CONSTITUTION SHALL HAVE ENGAGED IN INSURRECTION, UNQUOTE. DEREK MUELLER IS A PROFESSOR OF LAW AT NOTRE DAME LAW SCHOOL. AND LAUREN SLESING IS A PROFESSOR AT HARVARD LAW SCHOOL. I'M INDEBTED TO YOU BOTH FOR BEING WITH US. I WANT TO START WITH YOU, PROFESSOR MUELLER AND THEN GO TO YOU, PROFESSOR LESING. IF YOU WERE TO SUMMARIZE FOR A LAW SCHOOL CLASS IN 40 SECONDS OR LESS THE MOST IMPORTANT COMPONENT OF TODAY'S ORAL ARGUMENT, PROFESSOR MUELLER, WHAT WOULD YOU SAY? >> I'D SAY THE SUPREME COURT WAS SKEPTICAL THAT ONE STATE COULD JUDGE THE QUALIFICATIONS OF A CANDIDATE LIKE THIS. THE COURT SEEMED VERY SKEPTICAL THAT ONE TRIAL COURT IN COLORADO COULD MAKE THIS DECISION UNDER COLORADO RULES OF EVIDENCE AND THAT WE MIGHT HAVE INCONSISTENT VERDICTS AROUND THE COUNTRY, AND WE MIGHT ASK THE SUPREME COURT TO STEP IN AND CLEAN UP THIS MESS IF THERE ARE INCONSISTENT VERDICTS. SO THE COURT WAS VERY CONCERNED ABOUT ONE STATE AFFECTING THE NATIONAL INTEREST AND ALSO ABOUT ASKING THE SUPREME COURT TO HAVE TO STEP IN AND RESOLVE THESE DISPUTES IN THE FUTURE. PROFESSOR LESING, YOUR SUMMARY FOR YOUR CLASS? >> I WOULD AGREE WITH THAT. I WOULD ALSO EMPHASIZE THE COURT WAS KEEN TO SEE CONGRESS PLAY A ROLE IN SPECIFYING THE PROCEDURES BY WHICH THIS ISSUE COULD BE ADJUDICATED. I THINK THE COURT RECOGNIZED HOW COMPLICATED IT WAS AND POINTED BACK TO THE HISTORICAL TIMES WHEN CONGRESS ACTUALLY PROVIDED A REMEDY UNDER THE 1870 ENFORCEMENT ACT THAT WOULD ENABLE YOU TO REMOVE SOMEBODY BECAUSE THEY'VE BEEN FOUND TO BE AN INSURRECTIONIST. AND I THINK THAT'S AN APPROPRIATE PLACE FOR THAT PROCEDURE TO BE SET AND THERE'S NO SUCH PROCEDURES THAT COULD BE INVOKED HERE BECAUSE PRESIDENT TRUMP HAS NOT BEEN CRIMINALLY PROSECUTED FOR INSURRECTION. >> PROFESSOR LESING, I KNOW THIS IS SOMETHING YOU HAVE PAID CLOSE ATTENTION TO, CONGRESS' ROLE IN THIS. WHETHER CONGRESS HAS OR HASN'T INVOLVED ITSELF IN APPLICATION OF THE 14th AMENDMENT. TEASE THAT OUT A LITTLE MORE FOR OUR AUDIENCE, IF YOU'D PLEASE BE SO KIND. >> WELL, WE TYPICALLY LIKE LOOK AT THE CONSTITUTION AND THINK IT'S OBVIOUS THAT A COURT CAN JUST INVOKE THE CONSTITUTION AND ENFORCE IT, WHICH IS WHY COLORADO THOUGHT IT WAS OBVIOUS THAT IT COULD JUST INVOKE THE CONSTITUTION TO ENFORCE IT AGAINST PRESIDENT TRUMP. BUT THE 14th AMENDMENT IS A COMPLICATED AMENDMENT. AND SOME OF THE PROVISIONS, LIKE SECTION THREE, THE PROVISION AT ISSUE HERE, AND SECTION TWO, WHICH IS ABOUT APPORTIONMENT IF MALE VOTERS ARE DENIED THE RIGHT TO VOTE, ARE VERY COMPLICATED TO FIGURE OUT HOW MAY MIGHT BE ENFORCED APPROPRIATELY. AND WHAT THE COURTS HAVE DONE IS SAY IN THAT KIND OF CONTEXT, WE'RE GOING TO RELY ON CONGRESS TO TAKE THE LEAD OR TO SET THE FRAMEWORK BEFORE WE'RE GOING TO ALLOW THE PROVISION TO BE ENFORCED AGAINST PARTICULAR PEOPLE. AND I THINK THAT MAKES SENSE IN A CONTEXT WHERE THERE ARE SO MANY QUESTIONS ABOUT HOW YOU DETERMINE WHETHER SOMEONE IS ENGAGED IN INSURRECTION, WHAT KIND OF PROOF THERE IS, WHAT'S THE PROCESS. THOSE THINGS SHOULD NOT BE MADE UP AD HOC BY STATE COURTS OR, FRANKLY, ANY COURTS WITHOUT THE GUIDANCE FROM CONGRESS. >> PROFESSOR MUELLER, IT WAS THE CONSENSUS AFTER THE ORAL ARGUMENTS CONCLUDED THAT THE JUSTICES DID NOT APPEAR MUCH INTERESTED IN DECIDING OR BURROWING INTO THE QUESTION OF WHETHER OR NOT THE FORMER PRESIDENT ENGAGED IN OR INCITED AN INSURRECTION. DID THAT IN ANY WAY SURPRISE YOU? >> IT WASN'T THAT SURPRISING IN THE SENSE THAT I THINK THE SUPREME COURT WANTS TO STAY AS FAR AWAY FROM POLITICS AS POSSIBLE AND STAY AS FAR AWAY FROM SOME OF THESE CONTESTED FACTUAL ISSUES AS POSSIBLE. SO QUESTIONS ABOUT WHETHER OR NOT TRUMP ENGAGED IN INSURRECTION, GETTING AT HIS STATE OF MIND ON JANUARY 6th, GETTING AT THE MEANING OF HIS TWEETS, INTERPRETING THE CONTENT OF HIS SPEECH AT THE ELLIPSE, THAT WAS SOMETHING I THINK THE COURT WANTED TO STAY AS FAR AWAY FROM AS POSSIBLE. AND GIVEN HOW MANY COMPLEX LEGAL ISSUES ARE AT STAKE IN THIS CASE AND HOW MANY DIFFERENT DIRECTIONS IT COULD GO, I DON'T THINK IT'S A SURPRISE THE COURT CHOSE NOT TO SPEND MUCH TIME ON JANUARY 6th ITSELF AND SPENT MUCH MORE TIME ON TEXT, HISTORY, AND LAW. >> PROFESSOR LESING, I HAVE READ SOME OF THE BRIEFS SUPPORTING WHAT COLORADO DID, AND ONE OF THE TAKEAWAYS I HAVE IS THERE WAS AN ATTEMPT BY THE FORMER PRESIDENT TO BLOCK THE PEACEFUL TRANSFER OF POWER BY ANY COMMON UNDERSTANDING THAT IS INSURRECTIONIST-LIKE BEHAVIOR. IT IS AN ASSAULT ON THE FORM OF GOVERNMENT IN OUR COUNTRY, AND THEREFORE THIS SHOULD BE AN OPEN AND SHUT CASE. CLEARLY, THAT'S NOT WHAT THE COURT THOUGHT. WHAT ARE YOUR REACTIONS TO THOSE WHO MAKE THAT KIND OF ARGUMENT? >> LOOK, I COMPLETELY AGREE THAT THE BEHAVIOR ON JANUARY 6th WAS OUTRAGEOUS. AND I THINK IT'S A SUFFICIENT REASON TO SAY HE SHOULD NOT BE PRESIDENT AGAIN. BUT WHETHER IT TRANSLATES INTO A LEGAL REMEDY, TO KICK HIM OFF THE BALLOT, IS A MORE COMPLICATED QUESTION. AND I THINK THE APPROPRIATE VIEW, WHICH I THINK THE COURT AFFIRMED LOOKING AT EARLY JEURYS PRUDENCE THAT SET THE PATTERN OF RESPONSIBILITY HERE SUGGESTS THAT IF YOU'RE GOING TO USE THE COURTS TO KICK PEOPLE OFF, IT'S GOING TO BE THROUGH THE STRUCTURE OF A STATUTORY REMEDY THAT'S BEEN SET BY CONGRESS. AND CONGRESS, FOR REASONS THAT NOBODY SEEMS TO KNOW, DROPPED THE MOST IMPORTANT REMEDY IN THE 1940s. SO WE BASICALLY ONLY HAVE A CRIMINAL REMEDY, AND THAT WASN'T USED IN THIS CASE. AND SO THAT MEANS AS OUTRAGEOUS AS HIS BEHAVIOR WAS, AND IT CLEARLY WAS, THE REAL QUESTION IS WHETHER THE LAW GIVES PEOPLE THE ABILITY TO KICK HIM OFF THE BALLOT AND AS THE LAW STANDS NOW WITHOUT CRIMINALLY PROSECUTING HIM THE ANSWER IS NO. >> PROFESSOR MUELLER, IF YOU GAVE -- ENGAGE ANY BASIC CIVICS LESSON ABOUT THE CONSTITUTION, YOU ARE FAMILIARIZED WITH ARTICLE TWO. THAT WAS MADE REFERENCE TO BY THE ATTORNEY REPRESENTING COLORADO THAT IT IS COLORADO EXERCISING ITS ARTICLE TWO RIGHTS. THIS IS AN ELIGIBILITY QUESTION, CLEARLY WITHIN THE PURVIEW OF COLORADO. AND IT WAS EXERCISING ITS RIGHTS IN THAT REGARD, WHAT'S YOUR ANSWER TO THAT PARTICULAR CONTENTION? >> YEAH, I THINK COURT AGREE THAT THE STATE CAN SET SOME RULES FOR ELECTIONS. THE STATE CAN DETERMINE WHO'S ON THE BALLOT. WE KNOW THAT NOT ALL THE SAME CANDIDATES APPEAR ON THE BALLOT IN EVERY STATE, THE GREEN PARTY OR THE LIBERTARIAN PARTY MIGHT NOT BE ON THE BALLOT IN EVERY STATE. THE COURT BRISLED AT THE FACT THAT SECTION THREE SEEMS DIFFERENT, ESPECIALLY WHEN IT'S CONTESTED QUALIFICATIONS. IN OTHER PLACES IF YOU'RE DEALING WITH A 21-YEAR-OLD OR A NICARAGUAN NATIONAL, THOSE ARE CANDIDATES WHO INELIGIBLE TO SERVE AS PRESIDENT, KEEPING THEM OFF. BUT THE COURT KEPT CIRCLING AROUND THIS NOTION THAT THERE'S SOMETHING ABOUT SECTION THREE OF THE 14th AMENDMENT THAT REQUIRES CONGRESS TO PROVIDE THE ENFORCEMENT AUTHORITY. AND SO WHILE IT'S TRUE THAT ARTICLE TWO GIVES STATES A LOT OF POWER TO COME UP WITH A MANNER OF APPOINTING PRESIDENTIAL ELECTORS TO DEVELOP THE BALLOT AND INCLUDE CANDIDATES, MAYBE EVEN KEEP CERTAIN CANDIDATES OFF, SECTION THREE FEELS DIFFERENT IN KIND, AND IT FEELS DIFFERENT IN THE SENSE THAT THERE ARE CONTESTED FACTUAL DISPUTE, AND ONE STATE SHOULDN'T BE THE ONE TO MAKE THAT DECISION FOR THE REST OF THE COUNTRY WITHOUT CONGRESS STEPPING IN TO PROVIDE GUIDANCE ABOUT HOW THEY DO THAT. >> COMING TO US FROM TWO OF THE FINEST LAW SCHOOLS IN OUR COUNTRY, PROFESSOR DEREK
