Let’s assume, for the sake of argument, that TFG decides to throw all pretense of following the law out the window and announces that he’s running for President in the 2028 election. We all know this is barred by the plain text of the 22nd Amendment. But when a few states tried to keep him off the ballot, using Section 3 of the 14th Amendment, SCOTUS essentially said, “not your job.”
Was that simply because the 14th Amendment issue was so thorny? Under ordinary circumstances would it be the state Secretaries of State who would make the call to keep an unqualified candidate off the ballot, and, in a seemingly clear-cut case like Trump’s, they would be upheld by the courts?
Honestly curious here. Has this ever come up before the courts before? I’m imagining not; a clearly unqualified candidate (say, one that was too young) would simply not run.
There is no legitimate path for Trump to run for another term as president without a Constitutional amendment nullifying the 22nd Amendment. The language is so clear even this badly compromised Supreme Court cannot mealy mouth their way around it. Trump could hypothetically declare martial law (albeit, only with the concurrence of Congress, and only in “Cases of Rebellion or Invasion the public Safety may require it“) and suspend federal certification of the count (although he has no authority to prevent states from running elections or state legislatures from selecting delegates for the Electoral College) but this is such a wholly unprecedented scenario that it wasn’t seen even during the American Civil War.
The reality is that Donald Trump is a not particularly healthy or cogent man would be 82 by the time he could take a hypothetical third term, and actuarily the odds are not particularly favorable for him surviving this term. Although all of the focus recently is on Trump and what a horrific person and leader he is, the larger problem is the political firestorm he has unleashed with the Republican party transitioning from a conventional neoconservative, pro-business party that was kind of indifferent to civil rights to one that is an emergent and almost explicitly fascist party. Whether or not the MAGA movement survives Donald Trump, the embers of that are going to keep burning indefinitely.
Right. For this reason, his efforts–if any–would be focused on suspending elections due to the national emergency and staying in office “temporarily” until he ends the crisis.
Trump, or for that matter, the US Congress, can’t actually suspend elections because those are run by the states, but they can refuse to certify electoral counts (procedurally; there is no lawful route to explicitly deny certification but they can just…not do it).
I suspect the reality is going to be much more prosaic, and more difficult to contest than a very clear contest of imaginary executive powers versus the clear language of the Constitution.
I completely agree with everything you’ve said. My question was more along the line of, “which government official/agency/body is the one to say, ‘no, you can’t be on the ballot.’” I assume it’s the state officials in charge of running their elections, but to the best of my knowledge nobody unqualified to run has ever tried it, and so the details remain untested.
Trump has never been indicted for, much less convicted of insurrection or rebellion, and the Senate voted for acquittal after the House voted (a second time) for impeachment. Invoking the 14th Amendment against a hypothetical offense not proven in court or in the Senate.
I think we are in essential agreement that what Trump did on January 6, 2021, meets the practical definition of inciting an attempted insurrection (and I would argue that there are many other actions that should render him unsuited for the office) but he has not been found to meet any legal qualification for that crime, and the justice system can only deal with legal offenses, not moral or ethical ones. Which should serve as an object lesson to anyone arguing that “the Constitution” or “the courts” will reign Trump in if(when) he decides to go full despot, nor that the normal political remedies (impeachment, threat of not winning re-election) hold any restraint at this point.
There was a weeklong hearing with testimony on both sides, and a Colorado judge found he was an insurrectionist. It is true this was not a criminal trial, but the fourteenth amendment does not say anything about a hearing or trial.
If Trump’s popularity is so low he looks to have little chance of winning, and mainstream media is still reporting such truths, he will get the Cenk Uygur treatment and be denied a place on primary ballots. Otherwise, the various mechanisms Democratic Party lawyers propose for keeping him off ballots will IMHO fail.
There also is the possibility of running for vice-president, similar to how Vladimir Putin and Dmitry Medvedev worked together.
I agree with you that Trump’s age is an issue here, as overthrowing a long-standing democracy is hard work. But I doubt he is seriously ill and do not rule out the third term Trump has mentioned so many times.
According to the 12th Amerndment, “no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States” As Trump will be illegible to be President in 2029, he will also be illegible to be Vice President.
To the OP’s question, each state has an office to determine who is qualified to be listed on the ballot. In Maryland, it’s called the State Board of Elections. Not the snappiest name, but it gets the job done. They would deny Mr. Trump just like they would deny someone who was only 22 years old or had some other disqualification.
I agree, but there is no mechanism to stop an ineligible person from being elected vice-president. Once elected, the only remedy is an impeachment conviction. And that’s impossible due to the Senate supermajority requirement.
The problem with this thread is that it’s like asking what happens if something goes faster than the speed of light. If Trump is on the ballot, all bets are off, the rule of law is no longer operational, and the US is no longer a democracy subject to laws, checks, and balances. No state would allow him on the ballot if they followed the laws on their books.
So, the answer is, all of the state boards of elections should keep him off the ballot. If they don’t, there’s no procedure, no answer, no way of knowing what will happen.
The finding in a hearing generally only has bearing on that case or trial; a judgment of some kind has to be rendered to use that finding in another case.
The relevant text of the so-called “Insurrection Clause” of the XIV Amendment is thus:
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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It is true that the text of the amendment does not required a conviction for insurrection or rebellion; however, given the scope of the office of President, such a finding would naturally be the domain of the Supreme Court of the United States, not a federal district court and certainly not a state court. No one successfully took such a challenge to the Supreme Court, and it is doubtful that even if the court had agreed to a hearing that they would have found Trump to have engaged in insurrection to a legal standard (notwithstanding the known biases of this court) due to the lack of conspiracy or an unambiguous statement of intent.
I personally think that what then-President Trump did on 6 January 2021 was an attempt at inciting insurrection and that descriptions of his behavior by aides is consistent with that intent, but without a clear statement of intent, evidence of conspiracy, or insight into his frame of mind (ugh) it is a matter of opinion rather than a question of fact, and in such a case a court is going to demand more than just a preponderance of evidence. Regardless, a plurality of engaged voters approaching a simple majority saw all of this in plain view, heard the stories and saw the violence in aftermath repeatedly for years including Congressional hearings, and decided to re-elect Trump anyway, which I think speaks to a certain public mood that isn’t interested in hearing legal arguments or weighing opinions about state of mind. If Trump were actually disqualified for office that may well have inspired more political violence, and given how angry Trump boosters are even though they won everything they could have hoped for, I have to wonder just how primed they are for larger insurrection if he had not even been allowed to run.
I think there is a far more persuasive case of electoral crime to be made in terms of his attempt to interfere with the vote count in Georgia—in fact, it seems to be an open-and-shut case with the essential act caught on audio recording—but that was racketeering and (arguably) extortion, not insurrection or rebellion, and it seems likely that the case will be indefinitely suspended or ultimately dismissed. So, if he can’t be found responsible for that, how likely do you think it is that any court, much less the Supreme Court, is going to disqualify Trump for inciting a riot with intent to overthrow the government?
The argument was that only the government of the United States can determine what constitutes an insurrection against the United States. Congress impeached but they did not indict, so that is the relevant and supreme fact here. The United States Senate found that Trump didn’t incite insurrection against the United States. I believe they’re 100% wrong, but Congress is the only constitutional authority on this.
The consequence of this is gut-wrenchingly awful, really more awful than any of us yet knows. But think of the consequences if it weren’t this way: corrupted red-state governments could say, for example, “Kamala Harris basically did insurrection by not securing the border, so she can’t be on the ballot in PA (an example, since we don’t yet know the 2028 nominee).”
The actual mechanism for keeping Trump off the ballot is the 22nd Amendment. No person shall be elected more than twice to the office of President. This doesn’t require a state to find any facts here, it’s Congressionally certified fact that Trump was already elected twice. If for some reason he’s made Vice President, then the 14th Amendment kicks in, which says that if you’re not eligible to be President, then you’re also not eligible to be Vice President.
None of this is a lock of course. SCOTUS could do funky things like make a ruling that “eligible” means “elected in an election”. If that happens there could be all sorts of shell games of resignations resulting in Trump succeeding to the office of President again. That’s a real thing that could happen since SCOTUS has basically gone insane. I’m not interested in talking about that, because there’s no way to talk about “omg what if everyone goes insane.” We can talk about how things are supposed to work, and if they don’t work that way, then anyone’s guess is as good as anyone’s else as to how it will actually work.
I’m not suggesting the Constitution is self-executing, if anyone’s tempted to jerk that knee, please re-read the above para.
I don’t think Trump would go for any such shenanigans. He will simply declare himself to be eligible. He can’t legally do it? He has no intention to. The easiest way for Trump to deal with ballots is to get rid of them. No need to have an election, he already knows everyone supports him and the other guys would just cheat. So no election, he’ll just keep being President “until we can figure out what the hell is going on”.
Fortunately, I don’t think Trump wants to be president again. I don’t think he wanted to be president this time but it was the only way to assure that he wouldn’t go to jail.
The reality is dictators tend to serve out their ‘term’ to their deathbed regardless of any laws, mental or physical disabilities. Tr-mp becoming president again already nullifies the constitution as it prohibits Tr-mp from holding that office again. We the people have decided to forgo it by the election. It no longer applies, and I wouldn’t be surprised of Tr-mp used this as a stated reason to run again.
The Presidential Succession Act requires anyone on it to be constitutionally eligible. But as many have mentioned, once people start acting completely insane, that all goes out the window (and it can be altered via legislation).