The thing that grinds me most about the SCOTUS’ approach yesterday was how they honed in with a laser-like focus on how letting states individually decide on a candidate’s eligibility could potentially disenfranchise voters, but seemed to go out of their way to avoid discussing how committing insurrection by attempting to prevent the peaceful transfer of power to the rightful winner of an election is a far more direct way to disenfranchise 80 million voters. 
SCOTUS does not have original jurisdiction in this case but could they assign a special master to determine if Trump did or did not commit insurrection?
They are not willing to use the 14th amendment as intended. In fact, not at all. They are leaning on states’ rights. But then they have to contrl those in this case. How could we control them? “We have no idea” is their answer. Leave it to congress. They will not rule on any one candidate.
The only place the court would throw out a candidate. Say Taylor Swift runs. She is 34. She would be 35 when sworn in in January 2025. Theree “running” and “being” president would differ in that. Or someone runs whose “natural born” status, like that of Ted Cruz, is challenged.
Suppose someone wants to run for president and no birth certificate can be found establishing when and where they were born? If a state court examines the evidence and finds the person would not be 35 years old on inauguration day, or could not be established to be a natural born citizen should the SCOTUS over-ride that decision?
I can’t help getting back to the idea upheld last election by SCOTUS that the State can direct electors how to vote. If the ruling is narrow enough to say Trump must be on the ballot but punts on his eligibility, then could Colorado, Maine, et al by statute before the election direct their electors to not vote for Trump as the state determined he was ineligible?
It depends on how they write the law. I would think the legislation would be written to encompass more than just one person, but predicting competence from Congress is a fool’s errand.
We’re screwed about Trump, but hopefully it will motivate Congress to take action for future insurrectionists.
No, I think we’re screwed for the forseeable future. If Congress has to decide whether a given person is ineligible, what are the odds that both houses will ever have enough sane members to cast aside what’s best for their party and do what’s right for the country – especially if it requires a 2/3 majority?
Basically, I don’t think anyone will ever be disqualified under section 3, no matter how much they deserve to be.
But as written, A14 doesn’t require a 2/3 vote to declare ineligibility, just to remove the disability. I could see Congress try to declare a person ineligible but I believe however that they would have to use the impeachment process even for a former officer (re: Belknap) so majority of the House and 2/3 of the Senate.
A14 doesn’t say anything about how to declare ineligibility. That’s the problem!
That’s plausible. They could also decide that preventing a person from taking office is a lesser action than removing them from office, and therefore only requires a majority of both houses. And I still don’t think they’d ever pull it off.
Which should have been the sensible thing to do at some point in the intervening time as with every other thing the POTUS is not supposed to do.
Possible but considering the impeachment process carries with it the further punishment of being barred from office (again Belknap) I think that what make the most sense is the House passes an Article of Impeachment on insurrection with the special rule that conviction automatically carries disqualification.
But under that procedure Trump has been acquitted at the Federal level of insurrection and therefore is eligible for the Presidency. And I think I may have just written Chief Justice Roberts’ opinion for him with the added bonus of “Don’t blame us. Blame Congress.”
It’s water under the bridge now, but my argument would’ve been: 14A is completely silent on how eligibility is to be determined. So in the absence of that guidance we fall back on Article 2 - states administer presidential elections.
Consequences be damned…if you have an issue with where the chips fall take it up with the authors, or declare 14A section 3 unconstitutional.
my money is suddenly on this option - as it affects almost no one practically and has way too many holes in it as currently written.
Declaring the Constitution unconstitutional. It’s a bold move, Cotton, let’s see how it plays out.
This makes complete sense to me*. And proves my point. If Congress couldn’t get its shit together enough to impeach and convict Trump for insurrection mere weeks after Jan. 6, they’ll never do it for anyone.
(*Except … what about someone who’s not a former president, or even a former office holder? If the MAGA Shaman guy wanted to run for president, would Congress have to hold a mock impeachment proceeding to rule him ineligible?)
It does give Congress the power (but not the exclusive power) to enforce. So conceivably they could legislate this supposed ambiguity away, so long as they colored within constitutional lines.
Did the SC bring up, in any meaningful way, the John Eastman “Alternate Slate of Electors” scheme?
I was surprised at how little time – IIRC – was spent discussing the ‘insurrection’ aspect, but – just as you see when Trump supporters approach that conversation – what went on at the Capitol on January 6th was it, all of it.
They don’t understand that January 6th at the Capitol was the low-rent, grunts, “boots on the ground” piece of the attempted coup. Those people were just flash bang grenades bused into the casino to serve as a diversion while the vault was being breached.
The “alternate slate of electors” and “rigged voting machine” schemes were the “White Men In Suits” piece.
To understand this coup attempt, you have to understand both AND how they fit together, and how Trump played an integral role in both.
I don’t recall the Justices really even bringing it up.
Did they just think it was a fight not worth fighting … because they thought that several of the other legal questions were even more tenuous and easier to dispatch?? Was it truly all-or-nothing, making it easier to go after the straw man arguments than the steel men?
My WAG is that they are kind of punting this, but they’ll quickly squash the POTUS immunity appeal (either by taking it and ruling on it swiftly, relatively for SCOTUS at least, or declining to take it). Then they’ll let the court case on Jan 6 play out. And then based on a conviction or acquittal there, let it be determined if he committed insurrection or not. Then it’s less ambiguous over whether or not Trump is eligible to serve as POTUS.
I mean, that seems to be a solution right there and they just let it play out one way or the other.
When the constitutional age of 35 was set, there were no birth certificates. Some people had easily faked documentation (family Bibles?), but it was common for Americans to not know.
There’s uncertainty as to whether William Henry Harrison was born in 1772 or 1773. Consensus seems to be 1773, but you can find both in web bios.
In my opinion, the Supreme Court is a reasonable body to decide such disputes. I don’t think they should be afraid of it, but they are.
Nope. A14(3) does not apply to them.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States,