But that doesn’t solve anything, because it still needs to be determined whether Trump falls under the criteria. Really, that’s what we already have: The criterion is “participated in an insurrection”, and the question is whether Trump did that.
The 14th Amendment would have been completely irrelevant for that, because the impeachment process itself can remove him and disqualify him from future office.
Using a vague law. A law that is much clearer absolutely solves the problem.
No matter how clear your criteria are, Trump is going to say “I didn’t do that”. There absolutely needs to be some sort of decision process.
The 14th Amendment specifically lists Senators and Representatives as subject to its provisions. It does not list the President. Regarding the SC decision, likewise I’m not seeing it expressed directly that the President is not an officer but it’s a pretty clear implication of the findings. But I spoke too quickly to say the SC “affirmed” that position. My apologies.
Right now there are a couple of issues making it unlikely (probably impossible) to apply the 14th amendment restrictions to Trump. One is that it doesn’t say that the president and VP are covered by its language. It sort of implies they aren’t, by specifying certain positions that are included, and then visibly omitting those. Also, what constitutes insurrection could be better defined. There is also nothing saying how or who enforces these restrictions.
Defining all of that would go a long way to making something unambiguous and practically unenforceable into something that could stop him cold, bar him from any more government power that could allow him to do further damage.
No, it’s not going to just simply say explicitly that he specifically can’t go into office, but I don’t believe any such legislation would ever be constitutional. The judiciary is the branch of government empowered with levying punishment on individuals through the legal process. The legislature is not supposed to punish people for committing crimes (outside of impeachment procedures). That’s why bills of attainder are disallowed.
No, but it says anyone “who holds any office.” I know this is a subject of debate among the expert class, so I must be missing some nuance, but it seems to me that the person who holds the highest office in the land is covered.
No sweat.
But people have cited a previous case where it was said that an officer of the US must be appointed to the position (which would exclude those who are elected to the position). That would explain why the law takes care to specifically include certain elected positions in addition to stating that officers of the government are not eligible to serve.
United States v. Mouat, 124 U.S. 303 (1888)
What is necessary to constitute a person an officer of the United States in any of the various branches of its service has been very fully considered by this Court in United States v. Germaine, 99 U. S. 508. In that case, it was distinctly pointed out that under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law or the head of a department, and the heads of the departments were defined in that opinion to be what are now called the members of the cabinet. Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the President or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.
Thanks, good info.
At least some of the conservatives on the SC consider themselves originalists, meaning they try to determine what the authors really meant (yeah, I know, it’s usually just a cover for doing whatever the hell they want to do). And as @Tride points out above, Legal Eagle says the authors of the 14th definitely meant to include the president.
Of course, this court also doesn’t seem to have much respect for the principle of stare decisis, despite what they said in their confirmation hearings.
Either of these facts could mean that SCOTUS wouldn’t necessarily throw out or knock down a 14A challenge to putting Trump on a ballot.
They might very well have. My personal opinion is they did. Simply due to the fact that there doesn’t seem to be a reason to exclude the president (or VP). My point was just that it’s not clear.
Correct me if I am wrong, but I thought the provision against bills of attainder refers only to criminal law. You cannot pass a law saying Trump is guilty of insurrection. But this is not a criminal case, should not require a conviction in court and, I assume can be applied by any secretary of state who chooses to. Then if the ballots are printed without Trump’s name, then that is that. Of course, this could happen only in a very blue state, so the whole question is really irrelevant.
Right, it doesn’t make any sense to say an insurrectionist isn’t allowed to serve as dog catcher (absurd example) but can be president.
I’ve watched some LegalEagle videos, he’s entertaining but I don’t believe he has any particular expertise in Constitutional law. I haven’t seen this particular video. I’d be interested to know what sort of evidence he cites to state that the authors of the 14th “definitely” meant it to apply to the President – the Congressional Record, contemporaneous press accounts, correspondence or other personal records of the drafters, etc.
I know some say that the fact that the Insurrection Clause applies to every other federal position makes it obvious that it should apply to the President. I have the opposite reaction – the fact that the President is very conspicuously NOT listed in the language of the amendment when they go to some length to specify the positions covered implies a choice to exclude the Presidency.
Apparently you can’t cut and paste the text of a YouTube transcript (at least not on the Android tablet I’m using), so here’s the video cued up to the spot where he talks about it (15:42).
Thanks for that link! Interesting – he cites a brief exchange between two Senators on the issue where one indicates his interpretation that the President and Vice President would be included. But LegalEagle himself notes that lawyers are split on whether this one Senator’s statement is enough to establish Congressional intent or whether a textural interpretation would exclude the President.
It just seems basic common sense that the drafters could not have intended that virtually everyone who commits insurrection is no longer qualified, but if the president does, that’s a-okay. I realize common sense doesn’t necessarily decide legal questions, but geez Louise.
How about another spanner in the works? With regards to impeachment
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
So it seems the President and Vice-President are not civil officers otherwise there would be “other” in the sentence
No matter how this turns out in regard to the President article 5 states “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” I don’t know how that would be interpreted but it seems to give congress the ability to further define the qualifications for participation in an insurrection as well as language that would pertain specifically to the office of the president.
I don’t really think it’s necessary now based on the phrase “…hold any office civil or military…” which should apply to the president without question. But the SCOTUS is what it is.
I agree, but suppose Congress does pass a law saying the Disqualification Clause applies to the Presidency and Vice-Presidency. Any chance SCOTUS will punt saying it’s a political question?
In this case punting would mean letting congressional legislation to stay in place. But they certainly could decide to interpret article 5 to mean something different from what it plainly says and arbitrarily declare it unconstitutional. Unfortunately because of their traditional use of judicial review this would be widely accepted by many instead of viewed as a constitutional crisis instead of it’s clear intrusion into the separation of powers since the constitution specifically gives this authority to congress.