I thought we had a thread already but I couldn’t find it.
It looks like we might be able to here it live here. I just hope that whether he is eligible or ineligible that SCOTUS makes it so that the determination applies to all states and DC AND empowers Secretaries of State to remove ineligible candidates despite state laws under the Supremacy Clause. Could you imagine if states had different interpretations or standards for being and NBC (Obama, McCain, Cleveland) or what exactly 14 years residency entails (Hoover)? Or if it was proven that a candidate were ineligible but yet no one could take them off the ballot? Fortunately, none of those cases resulted in being eligible in some states but not others because I think everyone would agree that would be a cluster.
My opinion is SCOTUS will punt and put it in Congress’ lap. More specifically that they must create a positive law making someone ineligible.
The Supreme Court will hear arguments on February 8 as to whether the 14th Amendment applies to Trump. They will decide that the Amendment does not apply in this case and that he can remain on the ballot. What will be the legal rationale for their decision?
My guess is that they leave it up to the individual states.
If, and this is a big if, they rule that he has to be on the ballot in all 50 states, then they’ll argue that there’s no law that says an insurrectionist can be barred from any office. Because the only way they rule that is if they’ve finished completely going off the deep end and they’ve ceased to even pretend that the Constitution matters.
They’re going to say it’s a matter for congress. They won’t leave it to states, because look what Colorado did.
(For the record, I suck at predictions, and know little about the law and the courts.)
I can see the current Supremes declaring that the amendment does apply to him because the president is an officer of the United States, but they will also declare that it would only apply to him after a conviction on insurrection charges.
I agree with this. The Court will rule (consistent with precedent) that eligibility determinations are Constitutionally delegated to the states. It will also articulate the procedural and substantive due process requirements the states must follow in making said determinations and emphasize that they are subject to judicial review. There will also be some nuance based on whether a ballot is part of a state-run primary or a party-run caucus and whether a state has codified a process for ballot eligibility challenges.
That said, to directly answer the OP question as phrased, the Court will punt by ruling that the Section 3 of the14th Amendment applies only to assumption of office and not to appearance on a ballot.
First off, I suspect they’d say that it doesn’t apply to the primaries, because the parties are private organizations who can set their own rules. Whether the nominee could then actually be on the ballot would be a different question.
If they do also cover the general election, then I suspect they’d argue that the clause isn’t self-executing, and require Trump to be found guilty or liable, or perhaps some other form of due process. And there would not be time for any of those.
They could also argue that it’s up the states to decide for their specific general election, treating whether he can run and whether he can actually take office as separate questions. But they’d still establish the same due process rules, with the same results—not enough time.
Either of these, or some combination of the two, is my prediction. (Maybe only after and if convicted on the January 6th charges in DC, not necessarily outright insurrection charges, and appearing on the ballots up until then is okay.)
This goes beyond the legal technicalities. Allowing Trump to be elected and then trying to disqualify him is a recipe for massive civil unrest. If they intend to disqualify him (very unlikely) then it must happen early. If they don’t disqualify him now, they are not going to try do so after he’s elected.
The main argument I think would be used that whatever Trump did was too weak to qualify as true insurrection.
The guy used a microphone to egg people on to the building on 1/6, but I think the Supreme Court would want something more substantive, like literally leading the charge with armed force, himself, in person, to count. Or drafting up complex plans for storming the building weeks in advance with other co-plotters.
Trump not winning the election this year is already the Number One primer for civil unrest. What makes you think his herd isn’t going to do some more insurrection this time?
Where did I say that? I’m just saying the recipe for maximum insurrectionist violence is to let him run and genuinely get the most votes and then try to disqualify him.
You make a very reasonable argument and I recognize its merits. However, the Supreme Court is comprised of nine justices, of which someone (often but not always the Chief Justice) must cobble together a majority who agree enough to endorse a decision. The justices who might presently sign on to a decision that the 14th Amendment applies only to assumption of office and not to ballot appearance would not necessarily be predisposed to the same outcome in a later decision on the substantive questions.
Got it. But, as much as I like to think I’m an optimist, I really do believe there’s no other choice for his herd than maximum insurrection. They learned last time trying it at one location didn’t work. And they’ve had years to prepare for their next shot.
Storming the building was just a small part of the plan he came up with weeks in advance with the other co-plotters. The main part was the fake electors thing.