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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.
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.
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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