Oh no wait I can do better.
They’ll have Trump sign it.
I’m confused. What event do you think only applies to the 2024 and maybe 2028 elections?
A person who having taken an oath of office and afterwards committed insurrection against the United States receiving electoral votes for President and possibly winning the election.
Ah.
But if Congress passed legislation raising the bar so high that it couldn’t be used to prevent Trump running in 2024 or 2028, what guarantee is there that the situation won’t come up again with somebody else?
Other, of course, than the strong possibility that if Trump wins in 2024 and by some technique in 2028, that there won’t be any more elections for President. But if it’s successful, it doesn’t get called an insurrection.
The odds are very low but you are correct that it is not nil.
a) Doesn’t matter to Republicans as long as Trump runs now.
b) You can change the law after the election for future candidates.
If you get the chance –
ETA: The odds get higher if it happens once and succeeds.
Are you saying that Congress should pass a law that overrides the Constitution?
Is there some technicality (other than “it does not apply to the president”) that the supreme court can use? For instance the voters that brought up the case? It is of course true for one voter as well as all voters if Trump did start an insurrection, but these things happen.
I think the abortion pill group of doctors has a very weak standing. If they think abortion is wrong, they do not need to “save” a woman who has already taken abortion pills. Texas has shown that. No need to help save a life.
This is just practice, a warm up. Expect more of their BS to come unless we get some serious penalties for trying to overturn the election.
And even if these clowns go to prison, someone else will come along.
That is basically my non-lawyerly interpretation,
Until it comes time to take office, state law regarding elections is in play. So the question is what are the requirements to be on the primary ballot, and in particular is one of the requirements to be eligible to hold the office being run for. One would hope that that would be part of the requirements, but it may be one of those things that is so obvious that they didn’t bother putting it in (see case law of Airbud v. Washington state).
If its not a requirement than Trump can run and even win. But when it comes time to take office the Supreme court will have to decide whether he’s eligable to hold it and if they decide against it what happens. It could mean that the VP takes office, or it could be that the EVs that went to Trump are void and it goes to Congress, or it could be that the electors can switch their votes to an alternative candidate.
Now if eligibility to assume office is a requirement to be on the ballot, then we have a bit of chicken and egg. The state will have to decide whether Trump is eligible or not but this question is really a national Constitutional one which would make the US supreme court the place for it to be decided. Hopefully this will mean that the Supremes would feel the need to make a ruling and give some guidance to the states as to whether they will eventually decide that Trump is eligible so that they know whether he should be on the ballot, but they could just decide that until it reaches the point that he is about to take office its irrelevent.
On a separate topic I am a bit concerned about the way that Trumps lawyers are fighting this.
“The question of eligibility to serve as President of the United States is properly reserved for Congress, not the state courts, to consider and decide,” lawyers for the former president wrote in their request to the justices submitted Wednesday. “By considering the question of President Trump’s eligibility and barring him from the ballot, the Colorado Supreme Court arrogated Congress’ authority.”
It isn’t that the Ammendment shouldn’t be used to disqualify a person from becoming president without due process that is the problem, its that doing so is Congress’s job, not the Colorado Supreme court.
Possibly setting up a be a new Trump strategy to end run around the voters and steal the 2024 election from Biden. If it really comes down to section 5 where “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Then the Republicans could decide that Biden’s “stealing” of the 2020 election from Trump constituted an insurrection and so he is ineligible to serve. Now this would totally turn the notion of checks and balances on its head and probably lead to mass civil unrest if not civil war, but who knows how far they would go.
Amendment 14; Section V
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Congress hasn’t passed any legislation and it’s up to them. But the states cannot encroach on Congress’ enumerated powers. Therefore Trump is eligible until Congress says he is not.
ETA: Legally, I think this is the correct answer. Remember the states control selecting electors, not who can run.
When former Confederates got found to be ineligible, was it only ever Congress that said so?
I believe so. At least those that were ineligible petitioned Congress directly IIRC.
In the other thread, they bought up the 14th Amendment might be self-executing thus no legislation is needed. I don’t believe that is correct and I am almost sure at some point Congress decided through some method that anyone taking an oath of office for the CSA or serving in their military was committing insurrection/rebellion/treason.
I do believe it is correct by simple logic. The only mechanism given on how disqualification works only talks about how Congress can decide that a person isn’t disqualified. “But Congress may by a vote of two-thirds of each House, remove such disability.” That strongly implies that the text of the 14th Amendment is always in effect, and Congress must act to undo it. There is nothing in there that says that Congress must vote to enable it.
There is no legislation needed to disqualify someone, the amendment is the legislation in force.
Note that you said:
It seems clear that if Trump is considered to be disqualified, as the courts are determining now, then he can appeal to Congress to grant him an exception.
I believe that the purpose of Section 5 is to give Congress the wiggle room to pass laws further refining what it is the 14th Amendment without having to modify it directly. If Congress needed to pass a new law for anything in the amendment to be effective, then they would have needed to do so even for the Confederate folks who were disqualified at the time.
ETA: Here is an example of Congress creating legislation in the wake of the 14th Amendment:
I’ll also note that Victor L. Berger was deemed ineligible by the House of Representatives, twice, and they refused to seat him. There was no special legislation passed to disqualify him, they just deemed that his actions were consistent with the text of the disqualification in the 14th Amendment.
As I believe has previously pointed out in this thread: They currently (barely) hold one house in Congress. Even if they could get it through the House, it wouldn’t get through the Senate.
The first examples here arguably suggest otherwise.
Going into seance mode and channel our dearly, or not so dearly, departed Bricker, I feel as if he would say that one of the most important tenets of Constitutional interpretation is that we should be governed by laws as they were passed and intended, not how we want them to be. Expanding a reading of the 14th Amendment to include gays or trans people, even if the clear text of the Amendment covers them, should not be done by judicial fiat, but rather by a clear expression of the will of the people. Otherwise, you have a unelected judiciary violating the separation of powers by ignoring the stated intent of the law. So the fact that I can find some statements by some founders/writers/voters that the law was never intended to cover gays or trans people means that a court that finds it does is violating the expressed will of the people and thwarting the entire basis of having a government of limited powers.
Of course it is all bullshit, but at least that’s what some would say.
Legal Eagle on the disqualifications.
Devin Stone, aka Legal Eagle, has a new video on the attempts to disqualify Trump from primary ballots.
(I was ninja’d because I was watching the video in order to write a commentary on it, c’est la vie.)
I find it interesting that as I argued earlier should be the case, Colorado started with the dictionary definition of “insurrection” to determine what qualified, since that isn’t spelled out in law.
And Devin says that even Mitch McConnell defined the January 6 actions as “insurrection” in a press conference shortly afterward.
Trump’s lawyers tried to insist that what happened wasn’t an insurrection. They refused to define it, but used the vague terminology that an insurrection was “more than a riot but less than a rebellion”. The Colorado courts didn’t buy that argument.
Another item in that video that I’d never heard before, was that that one reason the Colorado Supreme Court decided that the 14th Amendment applied to the presidency, and that the POTUS is an “officer” holding an “office” is that as written, impeachment laws state that when convicted an impeached person can no longer “hold office”. If such language excludes the POTUS, then an impeached person could continue to be POTUS, which is absurd. (Maybe that’s old news to others, but it’s new to me.)
The video also touches on the “self-executing” question of the 14th Amendment. Apparently, Samuel Chase (yes, the only member of SCOTUS to ever face impeachment) opined while serving as a circuit judge for Virginia that the amendment was self-executing when he was ready to rule over the treason trial of Jefferson Davis. Andrew Johnson pardoned Davis before the trial occurred, but reported Chase was ready to use the amendment to apply punishment and that no criminal trial would be necessary to determine that Davis was ineligible to serve office.
But years later, when Chase was a Justice om the Supreme Court, there was another trial where a person was sentenced by a judge who was previously a Confederate officer. The convicted person argued that the judge should have been disqualified by the 14th Amendment, and Chase disagreed, saying it was not self-executing and that Congress needed to pass further legislation before the disqualification could be enforced. So, clearly Chase changed his mind on this point over the years.
When Maine decided to exclude Trump from the primary ballot, the reasoning was very much in line with what Colorado had previously argued. The Secretary of State of Maine relied on a historian who used historical documents to show that contemporary members of Congress at the time the 14th Amendment was passed believed that the POTUS was absolutely included and during discussion of the amendment, they believed that it would prevent Jefferson Davis from trying to fill the office of president. That spoke to the fact that the amendment was indeed intended to apply to the POTUS.
That’s incorrect. There have already been people restricted from holding office where Congress did not play any role. Likewise, SCOTUS doesn’t check in with Congress before they make a 14th amendment ruling. I think your reading of that clause (and my initial read as well) is not how it works as a matter of law.
Also, FWIW, Barbara McQuade on MSNBC today discussed the argument that 14A doesn’t prevent someone from running, only from holding office. She dismissed it as an absurdity, and that no court is going to rule that Trump (or anyone) is free to run, but come January 20 the inauguration may not proceed. She said that just isn’t happening.