The judicial branch isn’t supposed to work that way to my understanding.
There’s already an active thread on whether/how Trump can be barred from office via the 14th Amendment here:
Technically that second thread is newer, this thread should have been used for discussion rather than starting a new one.
Weird question I just thought of. If a state or Congress passed a law (technically a resolution) saying that Trump (or anyone else involved in the Insurrection) were ineligible under the 14th, would that be a Bill of Attainder?
Maybe if the actual law mentioned Trump by name, but certainly if it outlined criteria that Trump would fall under, it shouldn’t. Here is what a Bill of Attainder is:
They are unconstitutional, but there is a set of criteria set forth to determine if a law falls under this description.
Courts have adopted a three-part test to determine if a law functions as a bill of attainder:
- The law inflicts punishment.
- The law targets specific named or identifiable individuals or groups.
- Those individuals or groups would otherwise have judicial protections.
The first item is arguable. You can say that this isn’t a punishment of Trump, even though it ends up being something he dislikes. Many people are not qualified to run for POTUS, and they aren’t being punished either. The law only changes who is considered to be disqualified.
The second item is clear. If the law doesn’t specifically mention Trump, or MAGA, or anything along those lines, and instead is broadly construed to include anyone who commits a particular act, I can’t see how anyone can argue that it’s targeted. It might have been inspired by a particular person, but that’s not the same thing. Many laws are written in reaction to a particular person’s actions or another singular event that brings to light the need for such a law. That doesn’t mean such laws are targeting that individual.
The third item would only apply if it was determined that you can only disqualify under the 14th amendment following a conviction. That is not stated in the amendment, and so whether or not such a protection currently exists is not clear.
So I’d say that the first one probably doesn’t apply, the second one shouldn’t unless they write some really awful language into the law, and I have no idea if the third one would.
I’d also argue that it is not the law that applies the punishment, it is the 14th Amendment that does that. The law would merely clarify that Trump’s actions render him liable under the 14th amendment.
The YouTuber LegalEagle has just put out a video on how the 14th Amendment works. Not saying he is the final authority on this but it is interesting (20 minutes long):
For the purpose of my hypothetical, I’m assuming Trump is named specifically in addition to anyone convicted of a crime related to 1/6.
Is is practical for you to summarize the bottom line of that 20 minutes of watching into something the rest of us can read in 10 seconds?
I have had this complaint before (from another person) and I am mindful of it but, in this case, I can’t summarize it. He covers many legal points. A summary of the legal issues is the video.
Best I can do, the amendment is not as clear (legally) as it may seem, courts have not decided this and there is conflicting law and opinions.
I don’t think that is news to any here. The video is worthwhile, I think, because he shows the various legal precedents and law that bear on this and does a good job leading us through this legal quagmire (even if there is no concrete answer at the end).
As I understand it, the best chance so far to disqualify Trump under the 14th would have been after his second impeachment; if he’d been successfully removed from office, they would have voted about his future eligibility.
Since he hasn’t actually been convicted of treason or seditious conspiracy, or, quite honestly, anything, yet, right now all he can say is “Well… that’s just your opinion, man.”
Even that is very useful. I understand that summarizing something where the overall outcome is “It’s complicated” is both difficult and unsatisfying. Thank you.
I’m guessing that would be a bill of attainder under those circumstances, and be unconstitutional. A lawmaker would be pretty foolish to try that.
That has nothing to do with the 14th Amendment; it’s a separate provision of the Constitutional provision for impeachment.
Also from Legal Eagle–apparently there is much confusion whether the President is an “officer” of the Government (for reals). When the amendment was being written there was discussion about whether it applied to the President, and the answer was “of course!”, but they didn’t put it in writing.
The President clearly is not an “officer of the United States” under the Constitution. The Appointments Clause give the President authority to, “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. . .” Clearly, he can’t appoint himself President. “Officer” in the Constitution refers to appointed offices – judges, cabinet secretaries, etc. The Supreme Court affirmed that the President is not an officer of the United States in Free Enterprise Fund v. Public Company Accounting Oversight Bd.
It clearly isn’t clear because law professors argue both ways.
My personal guess is that most Supreme Court justices will not want to rule that the insurrection clause applies to everyone in the government except the president. That sounds too extreme. They probably will rule in Trump’s favor, but on some narrower ground.
I wonder if they will say that no decision can be made, to exclude Trump from the ballot, while relevant criminal prosecutions are in progress, or pending appeal.
They will also mention that he was impeached for insurrection-related activity, and acquitted.
Sure, law professors argue both ways. It’s what they do. But the Supreme Court has ruled that the President is not an “officer of the United States” and unless and until they reverse themselves that’s the clear law of the land. I suppose there could be an interpretation of the Insurrection Clause that allows someone to be barred from the Presidency that doesn’t depend on the President being considered an “officer of the United States.”
We may find out soon how the 14th amendment will work since challenges have already started. SCOTUS could also just boot any cases that come their way. They might leave lower court decisions in place, or could deny the challenges without explaining what a successful challenge to a candidate getting on the ballot would be. It’s going to be interesting to find out. I think at the least we’ll see that lacking a lower court decision that Trump did participate in an insurrection he will have no problem getting on the ballot and SCOTUS won’t go further than that. It will be very interesting to see what SCOTUS does if a state court rules that Trump did participate in an insurrection during a challenge to his candidacy.
Emphasis added.
I’m not seeing that conclusion in some quick research of that decision. Also, I believe the 14th was used to bounce several elected members of Congress after the Civil War, who were not, of course, appointees.