# SCOTUS hears the case on Trump's eligibility on February 8, 2024 **URL:** \ **Category:** Politics & Elections\ **Tags:** trump\ **Created:** [February 6, 2024, 8:25pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204 "2024-02-06T20:25:55Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [February 10, 2024, 6:57pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/221 "2024-02-10T18:57:35Z")
It will not surprise me if it’s unanimous in favor of Trump. None of the Justices seemed to be impressed with Colorado’s arguments. There may be multiple concurring opinions published. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 10, 2024, 8:56pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/222 "2024-02-10T20:56:51Z")
That wouldn’t surprise me. But ISTM their ruling has to include some form of “Listen up, peeps. This is how it works.” IOW, they might say only Congress has the power to establish the process for determining the disqualification, entirely within their discretion, or something like that. Any decision that leaves people saying, “Okay, so what the @#$& happens now?” will be a massive fail and dereliction of duty. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 10, 2024, 9:37pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/223 "2024-02-10T21:37:41Z")
> [@Stratocaster](#): > > IOW, they might say only Congress has the power to establish the process for determining the disqualification, entirely within their discretion, From another thread > [@If SCOTUS decides Jan 6 was a riot, not an insurrection, what happens to those convicted?](https://boards.straightdope.com/t/if-scotus-decides-jan-6-was-a-riot-not-an-insurrection-what-happens-to-those-convicted/997332/5): > > Consider the insurrection statute (18 USC 2383): > > > Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. Trump was never convicted of this therefore he is still eligible. Colorado’s ruling is overturned. Yours very truly, John G. Roberts, Jr. Chief Justice of the United States and the other eight. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 10, 2024, 9:40pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/224 "2024-02-10T21:40:22Z")
Which, of course, is quite obviously contrary to both the original intent and plain text of the amendment (both of which, paradoxically, the Republicans on the court pretend to be bound by), given that the Insurrection Act wasn’t passed until long after the 14th Amendment. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 10, 2024, 9:45pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/225 "2024-02-10T21:45:55Z")
Sadly, cowardice will likely rule the day. 8-1 or 9-0 ruling in favor of Trump coming up. For once, even someone like Sotomayor appears poised to slink out the fraidy-cat way rather than take a firm stand. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [February 10, 2024, 9:53pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/226 "2024-02-10T21:53:24Z")
> [@Saint\_Cad](#): > > Trump was never convicted of this therefore he is still eligible. Colorado’s ruling is overturned. > Yours very truly, > John G. Roberts, Jr. Chief Justice of the United States and the other eight. Someone should remind Justice Roberts that there were multiple people (who did not apply for and receive amnesty) ineligible to hold office after the Civil War per the 14th, despite the fact that they weren’t convicted of insurrection. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 10, 2024, 9:56pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/227 "2024-02-10T21:56:20Z")
> [@Velocity](#): > > Sadly, cowardice will likely rule the day. 8-1 or 9-0 ruling in favor of Trump coming up. IF there is some firm legal reason for Trump to win, and I believe there is, then I would not have a problem with it. If it is some BS like “the President is not an officer” or “States can’t run their elections despite all of the stare decisis” then that’s a problem. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 10, 2024, 10:18pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/228 "2024-02-10T22:18:08Z")
> [@Saint\_Cad](#): > > Trump was never convicted of this therefore he is still eligible. Colorado’s ruling is overturned. Certainly a plausible outcome. If you believe that Section 3 is not self-executing and that Section 5 gives Congress the (sole) power to enforce it, then you’d likely conclude that the Enforcement Act of 1870 provided the civil mechanism for enforcement (because it obviously was). As was the criminal insurrection statute (which was passed in 1862, prior to the 14th Amendment, but also provides that someone so conflicted was disqualified from holding office). You would also conclude that the repeal of the civil mechanism by Congress (while leaving the criminal insurrection statute and its specified consequences) left 18 USC 2383 as the sole way to enforce Section 3. > [@Chronos](#): > > given that the Insurrection Act wasn’t passed until long after the 14th Amendment. The 14th amendment was adopted in 1868. The Enforcement Act was adopted in 1870 (after, of course, the 1869 decision holding that Section 3 was not self-executing). The Second Confiscation Act (which established criminal insurrection and the bar from holding office) was passed in 1862. I don’t know what the “Insurrection Act” you’re referring to is. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [February 10, 2024, 10:36pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/229 "2024-02-10T22:36:07Z")
> [@Velocity](#): > > Sadly, cowardice will likely rule the day. 8-1 or 9-0 ruling in favor of Trump coming up. For once, even someone like Sotomayor appears poised to slink out the fraidy-cat way rather than take a firm stand. I don’t think it’s cowardice at all. I don’t want Trump to be president. I don’t see a legal reason to keep him off the ballot and I’m guessing even the liberal justices feel the same way. ---
**Author:** ![Atamasama](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/atamasama/32/12961_2.png) [@Atamasama](https://boards.straightdope.com/u/Atamasama)\ **Post date:** [February 10, 2024, 10:43pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/230 "2024-02-10T22:43:32Z")
> [@Falchion](#): > > I don’t know what the “Insurrection Act” you’re referring to is. I’m only aware of one. > **[Insurrection Act of 1807](https://en.wikipedia.org/wiki/Insurrection_Act_of_1807)** > > The Insurrection Act of 1807 is a United States federal law that empowers the president of the United States to deploy U.S. military and federalized National Guard troops within the United States in particular circumstances, such as to suppress civil disorder, insurrection, or rebellion. > The act provides a "statutory exception" to the Posse Comitatus Act of 1878, which limits the use of military personnel under federal command for law enforcement purposes within the United States. > Before inv... Of course it was passed 61 years **before** the 14th Amendment. ---
**Author:** ![bobot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bobot/32/21622_2.png) [@bobot](https://boards.straightdope.com/u/bobot)\ **Post date:** [February 10, 2024, 11:05pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/231 "2024-02-10T23:05:03Z")
Any rebellion _or_ insurrection… _or_ gives aid… Sounds to me like 3 conditions, one of which might require a conviction on an actual charge of the crime of insurrection. They’d better get this wiggle room straightened out. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 11, 2024, 12:29am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/232 "2024-02-11T00:29:16Z")
One of these links was posted before by Whack-a-Mole, but this hasn’t be brought together as follows. Thursday morning: [Chief Justice Roberts presses Trump’s attorney: What about a self-admitted insurrectionist?](https://www.cnn.com/politics/live-news/supreme-court-trump-ballot-colorado-02-08-24/h_796bf0231d8fa531d4d266a9c1280762) Thursday afternoon: [Trump Says Jan. 6 Was an Insurrection](https://www.rollingstone.com/politics/politics-news/trump-says-jan-6-insurrection-1234964730/) > [@](#): > > The former president contradicted his lawyers by describing the day’s events as attempt to overthrow the government … “caused by Nancy Pelosi” So Trump dared them to disqualify him by deliberately coming close to a public admission of the central charge. The mention of Pelosi is just a smokescreen so he can deny he tried to turn John Roberts into a humiliated toady by bragging about insurrection. I don’t see how you can doubt that the Republicans who wrote and passed the 14th amendment, if currently in some afterlife with one-way communication from earth, think Trump disqualified himself by breaking his inauguration oath, to uphold the constitution, when directing Pence to overthrow the constitutional order. Much of the modern world might seem bizarre to them, but Trump they would understand, and they’d think his like had been dealt with in Section 3. I also think SCOTUS could reasonably look at Trump’s pledge to overthrow the constitutional order if re-elected, such as by being a dictator on day one. By itself, planning a future insurrection probably doesn’t trigger Article 3, but it speaks to a pattern of admitted disregard for the oath. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [February 11, 2024, 12:49am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/233 "2024-02-11T00:49:41Z")
> [@PhillyGuy](#): > > I also think SCOTUS could reasonably look at Trump’s pledge to overthrow the constitutional order if re-elected, such as by being a dictator on day one. By itself, planning an insurrection doesn’t trigger Article 3, but it speaks to a pattern of admitted disregard for the oath. Yet _that_ is not something that the Court is being called to rule upon as part of this case, is it? _They_ are not being asked to judge Trump to have engaged in or aided rebellion or insurrection. They are hearing pleas to rule upon the actions of the Colorado government, on whether any state government can _administratively_ find someone to be in rebellion and disqualified under A14Sec3 (and thus forcing the Congress to affirmatively requalify the person) and if so then based on what. BTW Kavanaugh’s line of questioning made me go _“oh please…”_ Yes, dammit, this section of the constitution DOES mean the people do NOT get to vote for whoever they really, really, want to vote for and all they get to do is make a sad face. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 11, 2024, 1:29am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/234 "2024-02-11T01:29:34Z")
> [@JRDelirious](#): > > Yet _that_ is not something that the Court is being called to rule upon as part of this case, is it? _They_ are not being asked to judge Trump to have engaged in or aided rebellion or insurrection. When the Article 3 issue first came up, news articles were saying that SCOTUS would need to create a uniform nationwide standard, as having Trump on some ballots but not others is absurd (and also, I would say, unfair to the GOP). Here is a [New York Times example](https://www.nytimes.com/2024/01/05/us/trump-supreme-court-colorado-ballot.html?unlocked_article_code=1.Uk0.gYTo._07s-2-E8pcn&smid=url-share): > [@](#): > > The sweep of the court’s ruling is likely to be broad. It will probably resolve not only whether Mr. Trump may appear on the Colorado primary ballot after the state’s top court declared that he had engaged in insurrection in his efforts to subvert the 2020 election, but it will most likely also determine his eligibility to run in the general election and to hold office at all. I recall that Roberts does not like broad rulings, but this situation calls for it. It doesn’t fit into the normal boxes. I think there is a tendency on the web for even progressive posters to take a highly literal approach to the constitution. Because there were no primaries in the nineteenth century, Article 3 needs some interpretation if it is not to be either ignored or lead to absurdity. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 11, 2024, 1:44am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/235 "2024-02-11T01:44:25Z")
I can see the argument that the primaries are the parties’ business, and that they’re allowed to present a candidate who’s ineligible for the general election if they want. But by that same argument, if a state wants to pass laws about who can appear on a primary ballot, it’s not the Feds’ business to stop them. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 11, 2024, 1:53am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/236 "2024-02-11T01:53:06Z")
> [@Chronos](#): > > I can see the argument that the primaries are the parties’ business, I believe primaries are functions of the state and have to follow state rules while caucuses are functions of the parties and they control what happens there. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 11, 2024, 2:23am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/237 "2024-02-11T02:23:08Z")
> [@Chronos](#): > > I can see the argument that the primaries are the parties’ business, and that they’re allowed to present a candidate who’s ineligible for the general election if they want. Sure, I can see the argument — especially for caucuses, as Saint\_Cad write above. But it is especially unfair to voters to have candidates on a government-issued ballot disallowed from winning. If a Supreme Court in some other country ruled that some localities could have a national leader on the ballot, and others could not, it would properly be a derided butt of jokes in that country. If the intent of Article 3 was to have the likes of Donald Trump on government ballots in some states and not others, the absurdity would have to be accepted. But there was no such intent. I think that we have an extraordinary situation here where Trump is playing with autocracy and daring SCOTUS to call him on it. It is all part of Trump’s hostile takeover of his party, and perhaps next year, the government as a whole. Some of these justices may live to regret they didn’t stop Trump when handed the opportunity. Will Roberts swear Trump in? He shouldn’t, and voters needed to know that information weeks ago, before delegate selection began. SCOTUS may feel pressure to keep Trump on all ballots because they would be late in taking him off. ---
**Author:** ![excavating\_for\_a\_mind](https://avatars.discourse-cdn.com/v4/letter/e/e8c25b/32.png) [@excavating\_for\_a\_mind](https://boards.straightdope.com/u/excavating_for_a_mind)\ **Post date:** [February 11, 2024, 2:30am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/238 "2024-02-11T02:30:03Z")
Here is the [text](http://media.aclj.org/pdf/Colorado-Republican-State-Central-Committee-v.-Anderson-Cert-Petition-PDFA_Redacted.pdf) of the appeal (at least the beginning of it) for reference: > QUESTIONS PRESENTED > The Supreme Court of Colorado held that states > possess authority, regardless of the lack of > congressional authorization, to determine that a > presidential candidate is disqualified under Section > Three of the Fourteenth Amendment and that former > President Donald J. Trump is disqualified as an > insurrectionist. The Questions Presented are: > > 1. Whether the President falls within the list of > officials subject to the disqualification provision of > Section Three of the Fourteenth Amendment? > 2. Whether Section Three of the Fourteenth > Amendment is self-executing to the extent of allowing > states to remove candidates from the ballot in the > absence of any Congressional action authorizing such > process? > 3. Whether the denial to a political party of its > ability to choose the candidate of its choice in a > presidential primary and general election violates > that party’s First Amendment Right of Association? At the outset, I believe that, no, the states do not have the authority to determine if a candidate is qualified/disqualified. The reasons for qualification are spelled out in the Constitution. Of interest is the qualification that to hold office one cannot have taken an oath to support the Constitution and also engage in an insurrection against it. The states have the authority to determine who is allowed ballot access. This authority is given to the states by the Constitution, not by Congress. Colorado’s laws permit (require?) the state to prevent ballot access to those who cannot hold office. Precedent says this is constitutional. To determine if Colorado’s determination that DJT is disqualified under 14 Amendment Section 3 would require the USSC to review the legal proceedings in which they made that determination and to determine if that was made in accordance with the Constitution. As for question 1, they answer is unequivocally Yes, for the meaning in Section 3 of the 14th Amendment, the President is obviously considered an officer of the United States. For question 2, there is nothing about Section 3 that differentiates it from other sections of the 14th Amendment to keep it from being self-executing. Again, the self-executing authority is granted by the Constitution. Congress is given the authority to limit that authority, but has not in the 150+ years since adoption. Question 3 is rather oblique. Certainly, a political party can choose any candidate they want. The state of Colorado has the right to prohibit ballot access so Colorado members of a political party could be prohibited from making a choice for a candidate who is not qualified to hold office. So, no, such denial of choice is not a violation of the 1st Amendment right of association. Of course, if it could be shown that Colorado’s determination that DJT is disqualified under the provisions of 14 Amendment Section 3 is not according to law, then Colorado would have to permit him ballot access as they would have no reason not to. But, for some reason, the appeal did not question that part of Colorado’s decision. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [February 11, 2024, 3:00am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/239 "2024-02-11T03:00:50Z")
> [@PhillyGuy](#): > > Will Roberts swear Trump in? He shouldn’t, and voters needed to know that information weeks ago, before delegate selection began. Just a side note here, it’s irrelevant if he does. It’s tradition for the Chief Justice to swear in the President, because it makes for a better ceremony that way. But it can be and has been done by anyone who can administer oaths for the US. Johnson, for instance, was sworn in by a Justice of the Peace after Kennedy’s death. Even if Roberts refuses to swear in Trump, Trump could certainly find someone else willing to do so. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 11, 2024, 3:48am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/240 "2024-02-11T03:48:51Z")
> [@Chronos](#): > > But by that same argument, if a state wants to pass laws about who can appear on a primary ballot, it’s not the Feds’ business to stop them. Are you saying that Trump can realistically be allowed the nomination and then barred from the general? Democrats would love that, because the GOP automatically loses. But it is a wildly undemocratic interpretation of Section 3. We shouldn’t be saying that Biden wins automatically, but that the GOP, if it wants to win in November, has to nominate someone who did not grossly violate an oath to uphold the constitution to the point of being an insurrectionist. Already too late? Maybe not. If Trump is disallowed before the convention, his delegates will be freed to vote for someone else. Perhaps the someone else would be DeSantis. But it would be a DeSantis who, if he won the general, would see that if he went too far, the Supreme Court would stop him from getting a second term. And, for fear of losing as Ford did, DeSantis or similar would refuse to pardon Trump. And then he’d criticize Trump to justify that. The nativist outbreak, that more or less started with the Tea Party, would be in retreat. I know, SCOTUS rules on cases. But sometimes they cannot uphold the Constitution without setting out some rules that go beyond, an example perhaps being the Miranda warning. (SCOTUS didn’t exactly specify the warning wording, but they came close.) Unless the Supreme Court steps a bit outside the boundary of the case they are ruling on, do you see a realistic way to keep Section 3 from being a dead letter? I don’t. Will SCOTUS do something on the order of what I say? No. But if 2024 is, as it appears to be shaping up, a GOP year, most of them may wish they had. > [@Chronos](#): > > Even if Roberts refuses to swear in Trump, Trump could certainly find someone else willing to do so. Knew that. What I said would not work unless a majority of the Supreme Court ruled that (a) they won’t swear him in and (b) any other swearing in is invalid. It would be ridiculously bad to apply this after Trump won the swing states! The only way to get Section 3 to work is to make sure the GOP nominates someone other than DJT. Short posts proposing big ideas tend to have holes in them, as here. Then, taken literally, so does Section 3. [Previous page](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204.md?page=11) [Next page](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204.md?page=13)