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A 126 page legal analysis of section 3 of amendment 14 of the constitution was released yesterday, arguing that Donald Trump, among others, is ineligible for public office, including the presidency. The authors are conservative, active in the Federalist society.
For reference, the relevant part of the constitution is
Among the arguments made were that it is legally self-executing—that is, it applies, like the 35 year old minimum age, without an explicit system to handle it to be set up by congress. Further, they think that people at almost every step along the process, from state officials deciding who goes on the ballots, to those capable of bringing an Amendment 25 complaint have a duty to ensure that this provision is fulfilled.
In reference to Trump, they argued that the events on and surrounding January 6th intending to overturn the election would constitute "insurrection or rebellion" as understood at the time of the passing of the amendment.
I can't see this not being important, but I'm not sure how exactly it'll play out—we could get court cases, possibly going up to the supreme court (no idea how that would play out). We may see state officials refuse to put Trump on the ballot. I expect this to lead to a substantial increase in support for Trump if this is seen as illegitimate, as it undoubtedly will be. At the same time, if this happens during the primary elections, and Trump is not even on the ballot in some states, it might make it significantly easier for another candidate to become the Republican nominee, unless the national Republican party interferes with it.
Note on the link: the pdf isn't opening for me right now and the wayback machine isn't helping. It was fine earlier, not sure what the issue is.
I don’t see how this could be “self executed” as in not requiring a process to apply it, simply because the earlier amendments require things like trials and forbid self incrimination. In short you’d have to convict Trump of these particular crimes before he’s actually disqualified. I can say Biden is giving aid and comfort to China, but my say so doesn’t mean anything unless I can show that he helped China in some way that actually harmed the USA. Anything else violates the spirit of the laws requiring trials, and runs dangerously close to giving the majority party cart Blanche to simply refuse to put opponents on the ballot on the pretext of some supposed high crime or misdemeanor or aid and comfort.
I can’t imagine that Trump or his supporters aren’t going to fight pretty hard against anyone refusing to put Trump on the ballot. It’s definitely against the spirit of free elections to refuse to put a declared candidate who meets the qualifications in state law on the ballot. In most states, having signatures of a fairly small percentage of the voters by law qualifies a candidate for the official ballot. Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.
They argue that if it conflicts with other portions of the constitution, it satisfies or supersedes them. I think they still think there are processes for dealing with these things and challenging actions of this sort, it just doesn't have to start with a conviction.
Certainly, as they should.
Sure. But it might be what the constitution requires, if they authors are right on this. Keep in mind also that the constitution is "the supreme law of the land."
This is another basis for disqualification from office.
While there is certainly the idea that the later in time controls, there is also the idea that repeals by implication are frowned upon (and certainly that is more true in the constitutional space compared to statutory). There needs to be a very heavy hurdle to claiming here that later in time controls over repeal by implication. The authors aren’t serious.
They, generally speaking, don't think it repeals them, because it's not imposing any criminal penalties, just a qualification for office, and isn't a law, but a constitutional provision.
That said, if we ignored that, we can all agree that it applied ex post facto, that is, to the members of the Confederate cause, so at least in that respect it can conflict with the spirit of other parts of the constitution. The enacters at the time also thought it would be equivalent to a bill of attainder.
But unless you establish that the person isn’t qualified, then it all becomes a game of simply declaring it and daring the other person to in essence prove you wrong. I can claim (as some on the right have) that Joe Biden has dementia and is thus unqualified. Except that without a medical diagnosis— in other words proof that the man has dementia — he’s still perfectly qualified. And absent two facts: that January 6 met the legal definition of insurrection (not what the media says, not what you and I believe, but the legal definition of insurrection), and secondly a conviction of one Donald J. Trump of instigating and materially aiding the insurrection in the first part. In other words, establish as per the rule of law and the American court system that there was an insurrection and that Trump actively and knowingly participated in it.
In the case of the civil war, they weren’t disqualifying random people on the basis of vague accusations. They either fought in a legitimate confederate army unit, or served in the confederate government, both of which were easily proven by the records of the CSA and the CSA army.
I don’t have a problem with that law as written. It’s a fine law, and I don’t want people who try to overthrow the government to later serve in that government. However, it is not and cannot be a simple matter of “somebody’s making a claim that this candidate is unqualified, therefore he can be summarily deprived of his rights to stand for election.” If that’s the standard, then nobody can say for certain they’re qualified until their political opponents weigh in on the issue in the form of deciding that this person is okay.
To be clear, the authors are not stating that state officials can just summarily decide. They're rather saying they can make initial determinations, which can be followed by judicial review as needed. (Although it looks like that's muddied a bit, since they think the proper procedure might vary state by state??)
Laws on who can be on the ballot do vary by state, especially for third parties. They have to have a given amount of support, and I think in some cases you can’t be a felon.
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In practice the Constitution is what the Robed 9 say it is. Three of them were appointed by Trump, and three more aren't going to buy this one either. Not even John Roberts. That a person can be disqualified from the office of President because their political opponents can get one judge, with no trial, to say that person committed rebellion is not going to fly. Hey, I know -- instead of impeaching Joe Biden over Hunter, the Republicans can find a judge to declare the Iran deal to be giving aid and comfort to the enemies of the United States, and bam he's out of office. Of course Democrats know Republicans are unwilling to try brazenly corrupt maneuvers like that, which is why the Democrats don't worry about the shoe is being on the other foot, but it's at least as supportable as any case against Trump.
It is not. The Supreme Court has ruled in past cases that states may not add qualifications for the offices of President and Vice President. And the Constitution does not state that those convicted of crimes (state or Federal) may not stand for those offices.
Fair point about the first half, although I'm somewhat less confident on what the supreme court's takes would be—I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.
As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people? You can argue that it doesn't apply to the current case, or that it requires more than what the authors say, but you can't just say that the Constitution doesn't impose ineligibility for committing those acts after swearing an oath.
This would be a clear case of a person convicted of aiding an enemy or being involved in insurrection. Two problems being that: no legal ruling has declared 1/6 an insurrection, and Trump has not been tried or convicted of insurrection. Which are both clearly required. Our legal system is based on the presumption of innocence, meaning that the government must first prove a crime took place, and secondly that the accused actually did said crime. I cannot accuse someone of murder unless I can show pretty conclusively that the person I’m accusing you of killing is actually dead, and that the best explanation of the evidence is that you did it. Even then, I’d have to get a jury conviction. I can’t just blanket claim that the crime you committed requires 5 years in jail, that the law is “self-executed” and haul you away.
I don't see that they're clearly required. When determining eligibility, the government doesn't have to consider due process - it doesn't have to prove anything beyond a reasonable doubt. And due process is to do with rights. There's no right to run for president.
If there's a liberty interest in running for office, then there's a due process consideration.
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Assertion without evidence. Why isn’t there a right to run for president? Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.
Directly inciting rebellion (which is more or less what his opponents accuse him of) is illegal and not protected by the Constitution. I don't believe Trump incited rebellion, but I think he did act through others to obstruct the lawful operation of the Senate, which is probably illegal, but not disqualifying.
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If there is one, it's a right that is routinely denied to those 34 and below. I don't see any reason why it couldn't be similarly denied to insurrectionists.
A relevant part of the paper (pages 93-94) addresses this point with historical evidence:
In this particular case Brown was rejected by the House Committee on Elections, but not under section 3 (as it would not come into force until the following year). Nonetheless, it clearly shows that those who wrote and adopted the 14th amendment understood it to be possible and acceptable to disqualify a person from elected office purely on the basis of speech.
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It's not a matter them doing things out of personal loyalty. It's a matter of the only way a competent jurist would buy this theory is partisanship or personal antipathy. This is crazy sauce legal theorizing.
You said a conviction would be "another" basis for disqualification from office; I assumed you meant other than Amendment XIV section 3. It would not. A conviction for treason, insurrection, or rebellion would be support for that basis of removal from office. Without that, there's nothing, particularly since the text says Congress can remove the disability but does not say it can impose it -- that rules out Congressional attainder, which is forbidden by Article I Section 9.
I assumed you were talking about conviction in the case of impeachments, so I actually meant Article I section 3 right there.
What do you mean by the last section, about imposition, attainder, etc?
He could be disqualified for impeachment and conviction, but only if he was actually convicted (which unlike a criminal conviction, definitely isn't going to happen), so that one's not relevant. As for the stuff about attainder, if we discard the notion that the law is somehow self-executing, there has to be some way of determining who committed the disqualifying acts and who did not. Traditionally there have been two ways of doing that -- an actual trial, or the legislature declaring the person so disqualified. This second method is called a "bill of attainder", and the US Congress and US States are forbidden from passing them. If the amendment had said Congress could impose the disqualification, it would have made a carveout, but it did not.
I'm not legally knowledgeable to make an informed evaluation of whether they're right here, but here's what they say:
On page 51, in a footnote, they list in support of their view, that both those at the time of its passage, both those in favor and those opposed considered that it was, in effect, a bill of attainder and an ex post facto law.
On pages 53-54, they argue that it's not a bill (since it's not congressional but constitutional), and it's not attainder, (since ineligibility from office shouldn't be considered a legal punishment).
All this was in the context of a section in which they argue that to the extent that it disagrees with earlier provisions, it supersedes them.
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And of course there is a process for Congress to do so — impeachment and conviction. So it wouldn’t be necessary.
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I don't know, actually removing Trump from the ballot seems like the sort of thing with entirely unpredictable backlash, especially in Florida and Texas(which has a captured federal judiciary).
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If this isn’t contested before the election, Trump wins, and then someone (eg Baude) brings suit under this theory would Baude claim it is an insurrection?
Trump uses a shitty legal theory to try to stay in power. He didn’t even do enough with the crowds to cause incitement. Yet due to those two things Trump committed an insurrection? I hope the guy goes away too but damn. If that is an insurrection, is Joe Biden unfit for his attempt to prevent the peaceful transfer of power to Trump citing shitty legal theories such as the Logan Act?
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True, but they are incompetent at lawfare and have no effective counsel willing to work on their behalf.
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