# 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:** 13
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 11, 2024, 8:40pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/241 "2024-02-11T20:40:29Z")
> [@PhillyGuy](#): > > Will Roberts swear Trump in? He shouldn’t, and voters needed to know that information weeks ago, before delegate selection began. Into what- prison? trump won’t win. ---
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [February 12, 2024, 3:08am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/242 "2024-02-12T03:08:09Z")
Moderating: > [@DrDeth](#): > > Into what- prison? trump won’t win. Let’s stick to the topic at hand, please. This is a hijack, and it doesn’t belong in this thread. Thanks. ---
**Author:** ![jebert](https://avatars.discourse-cdn.com/v4/letter/j/ec9cab/32.png) [@jebert](https://boards.straightdope.com/u/jebert)\ **Post date:** [February 12, 2024, 5:28pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/243 "2024-02-12T17:28:36Z")
It seems to me that, by their line of discourse, the Supreme Court is avoiding the **central question** as to whether Trump engaged in an insurrection or rebellion and is thereby ineligible to be President. If their opinion does not answer this question, how do we get an answer? Would it take another suit to establish Trump’s eligibility/ineligibility under 14/3? Would such a suit have to wait until he hypothetically wins the election? ---
**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 12, 2024, 5:49pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/244 "2024-02-12T17:49:09Z")
I think it will boil down to whether or not the finding of being an insurrectionist Can be done by a state or has to be done the Feds? If it is the Feds who decide then is the “enforcement by legislation” satisfied by the law via the insurrection act and for it to take effect does he need to be convicted (is it or is it not self executing?) In any of these cases, it is not up to SCOTUS to determine if Trump as an insurrectionist. ---
**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 12, 2024, 6:12pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/245 "2024-02-12T18:12:33Z")
> [@jebert](#): > > the Supreme Court is avoiding the **central question** as to whether Trump engaged in an insurrection or rebellion > [@Saint\_Cad](#): > > In any of these cases, it is not up to SCOTUS to determine if Trump as an insurrectionist. Yeah, as mentioned earlier _ **that** _ is not the legal question being asked of them, and as an appellate venue they do not function as original triers of fact. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 12, 2024, 6:55pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/246 "2024-02-12T18:55:10Z")
> [@JRDelirious](#): > > Yeah, as mentioned earlier _ **that** _ is not the legal question being asked of them, and as an appellate venue they do not function as original triers of fact. This will be long because I am confused. Let’s change the facts to avoid Trump, as that’s too emotional. Suppose that there was a popular American politician, running for president, who was born without a birth certificate being filed — used to be common and may still happen — and she says her age is 35. But opposition research found a school record implying she is now 33. As a tax-paying primary voter, I think my government should let me know, before voting in the primary, whether my vote would be wasted if cast for her. And since there is no enacted federal law spelling out how to resolve this question in a timely manner, AFAIK, the only body that could plausibly resolve it is the Supreme Court. As for there being a need to have a case to rule on, yes, I agree, there would have to be a lawsuit that the federal Supreme Court could use as the vehicle to make a constitutional determination. But there is one that came up from a state Supreme Court. Federal Supreme Court - help me out here. Don’t refuse to make a uniform national rule because it may make you unpopular. That would be like saying Brown v. Board of Education only applies to Kansas. Am I being unreasonable? If I am, doesn’t that make Section 3 a dead letter? And shouldn’t the Supreme Court prevent that due to having taken an oath of office to “support and defend the Constitution”? ---
**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 12, 2024, 7:23pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/247 "2024-02-12T19:23:46Z")
You see, **jebert** stated that “the central question” should be whether Trump did or did not engage in insurrection and SCOTUS was avoiding it. Which is _not_ the question they are being asked. The question being asked is if Colorado’s way of enforcing Sec. 3 is within what the amendment meant to happen. The Court saying he can stay on the ballot would **NOT** be, although we KNOW Trump & Cult would so loudly proclaim, an exoneration or proof he did not engage in the rebellion. Only that this is not how you take him out. Now, what if the Court reaches the conclusion, that to prevent a hodgepodge of rules Sec. 3 NEEDS federal enforcement under a uniform nationwide standard and Congress hasn’t bothered legislating one? Well IANAL but I have to imagine they _could_ say, alright, until Congress comes up with that, the process will have to be requiring a _conviction_ for insurrection, or going through some legal process involving X Y or Z. But again that is not adjudicating whether Trump engaged or not in 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 12, 2024, 7:27pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/248 "2024-02-12T19:27:22Z")
But SCOTUS would not be deciding whether or not he committed insurrection. They would decide on appellate issues like was he denied due process, can a state decide federal eligibility issues, did the state conflate “elected to” and “hold” office. ---
**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 12, 2024, 7:31pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/249 "2024-02-12T19:31:04Z")
> [@JRDelirious](#): > > You see, **jebert** stated that “the central question” should be whether Trump did or did not engage in insurrection and SCOTUS was avoiding it. Which is _not_ the question they are being asked. That’s a good point too. Trump did not appeal the determination that he committed insurrection AFAIK. He was appealing if that determination should keep him off the ballot. SCOTUS confines themselves (usually) to the points being appealed. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 12, 2024, 8:18pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/250 "2024-02-12T20:18:36Z")
> [@Saint\_Cad](#): > > But SCOTUS would not be deciding whether or not he committed insurrection. Then who decides this, in a timely manner, under the U.S. system of government? If someone Trump-like is elected, and does something to directly hurt me, I perhaps can sue on grounds they shouldn’t be president due to being an insurrectionist (or due to, in my less contentious example, being too young for the office). Conceivably, if there is no applicable sovereign immunity, I, years from now, get a financial settlement. But if SCOTUS didn’t stop Trump from running, it is a complete absurdity to think they would throw him out of office after winning a free and fair election. In some countries, national high courts have set legislative deadlines when the constitution requires a law that never passed. I suppose the GOP hates the reasoning in my last sentence. But, in theory, SCOTUS could say that the Congressional oath of office, to uphold the Constitution, requires them to pass a law implementing 14th Amendment Article 5 (“Congress shall have power to enforce, by appropriate legislation, the provisions of this article”). But this seems unreasonable, and still leaves the age 35 rule unenforceable. What if all fifty state Supreme Courts were to rule that the candidate was age 33? Another absurdity, because a candidate, popular enough to have a chance of winning, always has regional support. So is Article 3 – and the age 35 rule! – nationally unenforceable regardless of how the Supreme Court rules? Or am I missing something? ---
**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 12, 2024, 8:57pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/251 "2024-02-12T20:57:53Z")
> [@PhillyGuy](#): > > Then who decides this, in a timely manner, under the U.S. system of government? THAT is the question for SCOTUS to decide. Is it Colorado? If so, does it have any nationwide consequence? Or can it even be used to get him off the ballot? Is it Congress? If so, he was already impeached and acquitted Is it the Federal court system? If so, he has not not been indicted in the 3 years since it happened, so I’m guessing the default is that he is eligible. Is it nobody? It was self-executing so everyone presumes he an insurrectionist until Congress lifts the disability by 2/3 vote in both Houses. > [@PhillyGuy](#): > > But, in theory, SCOTUS could say that the Congressional oath of office, to uphold the Constitution, requires them to pass a law implementing 14th Amendment Article 5 (“Congress shall have power to enforce, by appropriate legislation, the provisions of this article”). They already have. It’s 18 USC 2383 and it automatically invokes A14(3) > 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. > [@PhillyGuy](#): > > So is Article 3 – and the age 35 rule! – nationally unenforceable regardless of how the Supreme Court rules? Or am I missing something? You’re missing something. Get him convicted on 18 USC 2383. Then there is no question. ---
**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 12, 2024, 9:14pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/252 "2024-02-12T21:14:36Z")
> [@Saint\_Cad](#): > > Is it Congress? If so, he was already impeached and acquitted It’s worth pointing out that on the question of insurrection, a majority of the House and the Senate voted to impeach and convict respectively. Yes, that doesn’t meet the constitutional threshold. And, yes, I understand that nothing in the 14th that specifically says this leads to an unambiguous conclusion. But we already know the opinion of a majority of Congress: Trump committed insurrection. ---
**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 12, 2024, 9:40pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/253 "2024-02-12T21:40:06Z")
> [@Saint\_Cad](#): > > Is it the Federal court system? If so, he has not not been indicted in the 3 years since it happened, so I’m guessing the default is that he is eligible. Yes he was indicted. > **[US\_v\_Trump\_23\_cr\_257.pdf](https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf)** > > 25.46 MB He was indicted for crimes to subvert the election and illegally keep himself in power, that’s insurrection. What happened on 1/6 is all part of that. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 12, 2024, 9:51pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/254 "2024-02-12T21:51:19Z")
> [@Saint\_Cad](#): > > They already have. It’s 18 USC 2383 and it automatically invokes A14(3) That [predates the 14th amendment](https://www.statutesandstories.com/blog_html/incitement-of-insurrection-and-the-second-confiscation-act-of-1862/) and so is not what they were thinking of for Article 5. And it has apparently not been used to charge any one in many decades. Also, the prosecutor would be deliberately picking the one charge, among several possible, that would disqualify a Trump-like individual from running. It is unlikely they would complicate their life by doing that. This gets back to the whole issue of no one having the conjoins to enforce Article 3. Not the Republican National Committee. Not the Supreme Court. Not Jack Smith, since he didn’t charge under 18 U.S.C. §2383. If Trump wins and gets us into a big war, and his disloyalty to the U.S. becomes obvious even to many Republicans, relatives of mine who voted for him may then complain that “they” shouldn’t have even let him on the ballot. Absurd, in a way — but also correct. And I do get back to age 35. Being 34 years old on inauguration day is not a crime. So a dispute over that must be even more unenforceable. No? ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 12, 2024, 10:02pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/255 "2024-02-12T22:02:45Z")
> [@Atamasama](#): > > He was indicted for crimes to subvert the election and illegally keep himself in power, that’s insurrection. Trump would argue that there is a different law for insurrection, and there is. Jack Smith knows that, and he deliberately did not charge under it. This will never stop an oath-breaking insurrectionist. In the extremely long term, I do see a way to stop a future Trump. Congress could pass an Article 5 implementation law establishing a non-partisan National Candidate Qualification Commission, staffed by representatives of civil society organizations like the American Bar Association. But the criminal justice model does not work here. ---
**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 12, 2024, 10:09pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/256 "2024-02-12T22:09:18Z")
> [@PhillyGuy](#): > > Trump would argue that there is a different law for insurrection, and there is. Jack Smith knows that, and he deliberately did not charge under it. This will never stop an oath-breaking insurrectionist. I don’t think that’s true at all. Because I have looked exhaustively in the entire history of the US for anyone who has ever specifically been convicted of the crime of insurrection, and I’ve never found it. Now, I’m not a lawyer or a legal historian, but you’d think such a thing shouldn’t be that hard to find if it existed. Unless you believe that somehow there is a specific crime called “insurrection” on the books that has never been violated before, which is so absurd that it isn’t even worth consideration. There are certainly penalties codified for what happens if a person has committed insurrection. But that’s sort of like saying that illegally operating a vehicle carries certain penalties; it describes a kind of crime but isn’t a specific one. Note that I’ve seen in legal arguments in court that people are relying on the **dictionary definition** of what insurrection is. Because there is no actual defined crime of insurrection. It’s not like you can point to it like you can point to grand larceny or aggravated assault. So no, I think your statement here is completely and factually incorrect. There is no different law for insurrection. Insurrection is a type of illegal action that would include using illegal means to subvert an election and effectively attempt to enact a coup, which is exactly what Trump has been charged with. ---
**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 12, 2024, 10:10pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/257 "2024-02-12T22:10:59Z")
> [@Atamasama](#): > > Note that I’ve seen in legal arguments in court that people are relying on the **dictionary definition** of what insurrection is. Because there is no actual defined crime of insurrection. Worse than that: There is a legal definition of “insurrection”, andi it’s circular. ---
**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 12, 2024, 10:11pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/258 "2024-02-12T22:11:56Z")
> [@Chronos](#): > > There is a legal definition of “insurrection”, andi it’s circular. Yeah, along the lines of, “you commit the act of insurrection when you engage in insurrection”. Hence why you have to whip out a Merriam-Webster to figure it out. And that’s when you go, okay, Trump _has_ been indicted for that. Note too in the indictment I linked to earlier: > After it became public on the afternoon of January 6 that the Vice President > would not fraudulently alter the election results, a large and angry crowd— > including many individuals whom the Defendant had deceived into > believing the Vice President could and might change the election results— > violently attacked the Capitol and halted the proceeding. As violence > ensued, the Defendant and co-conspirators exploited the disruption by > redoubling efforts to levy false claims of election fraud and convince > Members of Congress to further delay the certification based on those > claims. It’s right there in the indictment, tying Trump directly to the insurrection at the capitol. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [February 12, 2024, 11:06pm UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/259 "2024-02-12T23:06:38Z")
> [@Atamasama](#): > > Because I have looked exhaustively in the entire history of the US for anyone who has ever specifically been convicted of the crime of insurrection, and I’ve never found it. We are talking about the one and only [18 USC 2383: Rebellion or insurrection](https://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title18-section2383&num=0&edition=1999#:~:text=Whoever%20incites%2C%20sets%20on%20foot,holding%20any%20office%20under%20the), right? If so, I believe you. New York Times, May 2023: [Insurrection charges are considered difficult to prove and are exceedingly rare.](https://www.nytimes.com/2023/05/25/us/what-is-seditious-conspiracy-insurrection-treason.html?unlocked_article_code=1.U00.gRJf.JR2DOziXdNRO&smid=url-share) The reporter thus could not find an example either. As for Smith’s charges being logically equivalent to insurrection, I agree but wouldn’t count on getting five current justices to buy it, and, anyway, it doesn’t matter because Trump is running out the clock. Maybe I am wrong. Maybe Trump will be frog-walked into one of those federal prison camps in mid-October, and excessively fair-minded voters, who bought the idea of waiting to see if he’ll win his appeals, then finally desert him. Or maybe news comes along that Biden glows in, like a clear Ukrainian victory. Or maybe Biden will shock me with brilliant messaging while Trump’s teflon wears off. But today I’m thinking that SCOTUS and the Colorado case is the last opportunity to stop Trump, and they will blow it. ---
**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 13, 2024, 3:19am UTC](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204/260 "2024-02-13T03:19:05Z")
> [@PhillyGuy](#): > > That [predates the 14th amendment](https://www.statutesandstories.com/blog_html/incitement-of-insurrection-and-the-second-confiscation-act-of-1862/) and so is not what they were thinking of for Article 5. It is possible that Bingham worried that the ineligibility clause of the law may be ruled unconstitutional so he added Section 5 in so it would now meet constitutional muster. Not saying that was his thinking but it is possible. [Previous page](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204.md?page=12) [Next page](https://boards.straightdope.com/t/scotus-hears-the-case-on-trumps-eligibility-on-february-8-2024/997204.md?page=14)