My New Bulwark Article on Trump and Section 3 of the 14th Amendment

The article makes the case for disqualification on moral and pragmatic grounds, as well as legal ones.

Donald Trump. ( Kyle Mazza/SOPA Images/Sipa USA/Newscom)

 

Today, The Bulwark published my article making the case for disqualifying Trump from future public office under Section 3 of the 14th Amendment. I address a variety of issues, including moral and pragmatic considerations, as well as purely legal ones. Here's an excerpt from the introduction:

The effort underway in several states to use Section 3 of the Fourteenth Amendment to disqualify Donald Trump from becoming president again raises a variety of legal, moral, and political issues. But fundamentally it comes down to this: liberal democracies often have good reason to bar from positions of vast power people whose track record shows them to be a threat to democracy itself, or to basic liberal values. Section 3—originally enacted to bar former Confederates in the aftermath of the Civil War—is a useful tool towards that end. And Trump epitomizes the sort of person who should be barred, for both legal and pragmatic reasons.

Section 3 bans anyone from state or federal office who previously held certain public offices and "engaged in insurrection" against the United States or gave "aid or comfort to the enemies thereof." Donald Trump is disqualified under Section 3 because of his attempt to use force and fraud to overturn the results of 2020 election, and especially because of his role in instigating the January 6, 2021 attack on the Capitol.

A president who tried to use force and fraud to stay in power after losing an election should not be allowed wield the power of office ever again. And we need not and should not rely on the democratic process alone to combat such dangers.

Trump should not be barred from the ballot if there are legal reasons why Section 3 cannot be used against him. But the legal arguments against disqualification are ultimately unsound, and most are very weak. The same goes for pragmatic arguments against disqualification.

I addressed some of the issues related to democratic theory and slippery slope concerns in greater detail in a recent Lawfare article.

Comments

[Michael Masinter]

Expecting the courts to save us from ourselves by enforcing section 3 is a fool's errand. We already know from the majority opinion amplified by Justice Kennedy's concurrence in Trump v. Hawaii how SCOTUS will bend to his will.

[ReaderY]

Trump v. Hawaii followed well-established precedent. Justice Kennedy merely acknowledged that well-established law forced an outcome that he personally, on moral and pragmatic grounds, would not have preferred. Nothing to do with Mr. Trump personally.

[Darth Buckeye]

Trump may be morally wrong to be president; let the people decide in a free election. An insurrection clause found in a section of a constitutional amendment enacted right after the end of the US Civil War gives us an idea of what the people voting for that amendment meant. If we are going to allow the courts to have the linguistic flexibility to adapt the law this much, it will only decrease our profession's standing with the public.

[Krychek_2]

The problem, though, is that "the people" do not decide in a free election. Trump was forced on an unwilling nation by the electoral college. And, if he gets re-elected in 2024, it will again be because he was forced on an unwilling nation by the electoral college. Which would then place us in the ugly position of having a president who has already demonstrated a willingness to seat fraudulent electors, send a mob to the capitol, and try to get the vice president to overturn a democratic election. What would he then do for an encore?

[Don Nico]

"Trump was forced on an unwilling nation by the electoral college"
You live in America; you live with its electoral system. Stop you partisan grumbling; Trump was whom the nation chose.

[Krychek_2]

OK, so you don't understand the difference between an *is* argument and an *ought* argument. Nobody is disputing that the electoral college is in fact our system of electing a president. My argument goes to whether it should be our system of electing a president. And if you don't even understand that distinction then it's no wonder you have trouble keeping up.

The founders told us that the electoral college would make it harder for dangerous demagogues to get elected. After Trump, that argument is a laugh riot.

[Brett Bellmore]

That argument was a laugh riot long before Trump; By historical standards in this country, he was practically a libertarian. You want a frighteningly authoritarian President, try FDR: He scared people so badly that, once he was safely dead, they adopted a bipartisan constitutional amendment to prevent any more Presidents for Life.

[Sarcastr0]

He scared people so badly he was reelected a bunch. That would seem to be the salient issue over the Constitutional Amendment.

You can dislike FDR all you want; calling him an authoritarian is a stretch.

Truman and Eisenhower both extended executive power beyond what he did, gonna call them authoritarian? If so, you've once again got your own special definition going on.

[Spinach Chin]

Is it your contention that authoritarians are never re-elected?

lol

[Brett Bellmore]

Hell, it's his contention that he's afraid of an authoritarian Trump being reelected! Makes claiming that being reelected proves you're not authoritarian even more hilarious.

[Alpheus W Drinkwater]

No, his contention is that FDR did not in fact "scare people badly," since they reelected him three times. That's why he put a period there and a paragraph break, before talking about authoritarianism.

And wipe off your chin.

[Don Nico]

"both extended executive power beyond "
and so it goes, each stretching the power of the executive bit by bit so that in your eyes and in the eyes of many Trump was and is an extreme threat to the Nation.
I think that lawyers like to call that the slippery slope.
Perhaps you call it ever moving goalposts.

[Spinach Chin]

I would argue that it prevented a dangerous ideologue from being elected

[Krychek_2]

That's because you have a completely whacked definition of "dangerous ideologue." Hillary Clinton's positions were slightly left of center, but in most of the Western world she would have been too conservative to get elected.

[Brett Bellmore]

Yeah, and most of the Western world is suffering from a long list of maladies thanks to that.

Lousy economic growth.
Exploding debt.
Cratering rates of childbirth
Increasing penalties for 'wrongthink'.

The US has been following that trend, too, the last few decades, but we're thankfully behind the curve. The danger of somebody like Hillary is that she'd bring us down to the level of the rest of the West.

[Krychek_2]

Lousy economic growth runs in cycles, the debt I'll give you, childbirth has little to do with government policies, and left and right both punish wrongthink these days. All that aside, it's a really tough case to make that Hillary Clinton would have been any more dangerous than Trump turned out to be. She at least wouldn't have spent four years doing everything she could to undermine democratic institutions.

But that's not the standard anyway. If you are going to subject the nation to the severe remedy of depriving the majority of self governance, I think you have to do better than show that the minority's preferred candidate would arguably have been better on this or that issue. Depriving the majority of self governance is such a drastic remedy that I think it requires a showing that allowing the majority its choice would have been catastrophic, at a level well beyond any bad results from the other side. I view self governance the way you view guns: It is such a fundamental right that infringing on it requires some really special circumstance.

[damikesc]

Trump did nothing to undermine anything.

Clinton was so nakedly on the take that she should never have been close to power in the first place.

The same can be said of Senile Joe.

[Don Nico]

Oh I do understand English.
You the one who used the phrase "forced on an unwilling nation."
Horse hockey
Own up to what you said and what you meant. And as for the school yard insult " it’s no wonder you have trouble keeping up."

[Krychek_2]

He was forced on an unwilling nation. That’s what I said and that’s what I meant. Getting the job even though he’s not the one who won the most votes is forcing him on an unwilling nation.

[Don Nico]

Nonsense. That is just your partisan anger bubbling over. You lost that election. Get over it.
The law is the law. Get used to it; stamping your feet doesn't change a thing

[Krychek_2]

I’m not stamping my feet and did I say anything would change? What’s done is done.

What I’m objecting to is the claim that he was elected by the American people. He was not.

[Alpheus W Drinkwater]

The founders felt the electoral college would prevent demagogues in the Presidency because they envisioned the electors as free agents. Once the electors were tied by law to the vote of the public at large, their effectiveness at demagogue protection was gone.

[Rev. Arthur L. Kirkland]

.

You live in America; you live with its electoral system. Stop you partisan grumbling; Trump was whom the nation chose.

Another part of the American electoral system disqualifies insurrectionists.

No need to stop your partisan grumbling, though, clingers. Whining about it is most of what you have left as better Americans continue to prevail — dooming your disgusting right-wing thinking — in the culture war. Your disaffected grumbling is an inconsequential annoyance as the American mainstream continues to improve America against your wishes and efforts.

Carry on, clingers. But only so far and so long as the American system — and better Americans — permit.

[Spinach Chin]

It's good that there are no insurrectionists running, then.

[Krychek_2]

Oh did Trump drop out?

[bernard11]

You live in America; you live with its electoral system. Stop you partisan grumbling; Trump was whom the nation chose.

There is a difference between "Trump won the election according to the rules," and "Trump was the people's choice."

[Don Nico]

That depends.
The people's choice is what the law produces.
He did not receive a majority or plurality of the votes. That is an objective statement I agree with. Just like "Trump lost the 2020 election no matter how you cut it."

[Krychek_2]

Oh hell no. Suppose the law provided that the Republicans will always win no matter what. That would be the law, and that would be the rule, but anyone claiming that that’s the peoples choice should be laughed off the stage. The Soviet Union used to have elections like that too.

[damikesc]

I’m glad you use totally sane, rational, and plausible hypotheticals.

[Dr. Ed 2]

WE DO NOT LIVE IN A DEMOCRACY -- THE US WAS NEVER INTENDED TO BE A DEMOCRACY!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This is a REPUBLIC and that is why our revolution didn't go the way of the French Revolution, which I would argue is a good thing.

If we went with national popular vote, our President would be elected by *just* the residents of our 20 largest cities with us very quickly going back to the Middle Ages when those inside the walled cities were safe while they remained therein, but at high risk everywhere else.

Our founding fathers knew history and they knew the need to have a
"republican form of government", so much so that it is guaranteed in the Constitution.

What the EC does is require a winning President to get the votes from a DIVERSE group of people, much like the requirement of *number* of donors in order to appear in the debates, which is also why we have limits on how much one can donate -- by your approach, someone with one really rich friend could fund her entire campaign that way. It'd be democratic....

[bernard11]

First of all, a republican form of government does not require that some states have disproportionate influence over elections.

If we went with national popular vote, our President would be elected by *just* the residents of our 20 largest cities .

You mean "the people." Why should a voter in NYC have less influence than one in Wyoming? There is zero rational reason.

Yes, the urban vote would be critical. This would be a feature, not a bug because, guess what, the reason that would happen is that lots of voters live in urban areas.

Under a popular vote any given rural voter would have just as much influence as any given urban voter. Why is that wrong?

[Don Nico]

Why is your scheme right. It is all arbitrary. The important matter is to obey they law

[Dr. Ed 2]

EXACTLY -- "kill all the lawyers" may move from Shakespeare to reality....

[Krayt]

If you can convince enough people at the national level, go for it.

State-by-state wildcat pot shots, to knock out one or two purple states, is a vile, un-American power grab.

It may take over from abortion as the poster child for we love democracy. Until we don't.

Yeah, yeah. I know. "We have to abridge democracy, work around it, to save it!"

[shawn_dude]

I think Jan 6th still wins on that one. When was the last time a losing party literally attacked the capital? Oh, and the state-by-state attempts to seat false electors. A close third would be attempts to extort a fake anti-Biden corruption investigation in Ukraine to affect the election.

Making a case before a court in a US state is a "vile, un-American power grab" because nothing says "grab" like petitioning a court for a legal ruling.

[John Rohan]

In 2017, there were violent riots at Trump's inauguration aimed at preventing the peaceful transfer of power.

[David Nieporent]

False.

[Toranth]

Nieporent once again reveals he is utterly ignorant of history, even things that happen recently - and perfectly willing to blatantly lie about things he knows happened.

#DisruptJ20 was a real movement, with the express stated purpose of preventing the transfer of power, and hundreds of arrests followed. Similarly, the Women's March used violence in repeated attempts to prevent Congress from performing its duties - even causing the Capitol Police to shut down the entirety of Capitol Hill because of their attacks. And that was before their attempt to break in to the Supreme Court to prevent the transfer of power.

Nieporent likes those violent movements, though, so he pretends that it's (D)ifferent.

[Sarcastr0]

the Women’s March used violence

Going after DMN and then bringing in fear of the pussy hat people.

[Toranth]

The police officers sent to the hospital certainly might have some "fear of the pussy hat people".
Of course, trying to distract from the violence by using silly descriptions is like trying to trivialize a KKK rally buy calling them "the bedsheet robe people".

Nice of you to show that you are just as dishonest and in the bag for the violent leftists as Neiporent, though.

[Dr. Ed 2]

Gaslighto -- I seem to remember windows being smashed and vehicles burning.

I also seem to remember someone with Federal authority establishing a perimeter of checkpoints some distance away from the Capitol -- there wouldn't have *been* a January 6th if they'd done that on January 6th because no one without a ticket could have gotten near the Capitol.

[David Nieporent]

Not sure how you went from a hashtag to a mass demonstration, but I was not in fact a fan of any of these things, so Toranth is wrong as always. DisruptJ20 referred to a handful of juvenile asshats who wanted to call attention to themselves by acting like juvenile asshats — the same sort of people (hell, probably some of the same people) who throw soup at paintings in museums or who glue themselves to streets. But their goal was neither to keep Obama in power nor to get Hillary inaugurated. It was just to make a spectacle of themselves and piss people off.

[Toranth]

"Handful" = thousands, of whom hundreds were arrested for violence crimes. All organized under the banner that used a hashtag, as you well know. I mean, unless you really are so stupid and ignorant as to have no idea what the movement was? Are you lying by pretending to know something you don't?

And I'm impressed that you know what their secret goal was, when they public stated that it was to prevent Trump from becoming President. Were you one of them?

And yes, you are supporting them here and now, by trying to trivialize their attempts to prevent the peaceful transfer of power. So, I'm right again, and you are once again lying. Just like you were lying about an Antifa lawyer threatening jurors a few days ago.

You're no different than Dr Ed - except with less evidence to support your claims.

[iowantwo]

#DisruptJ20 was a real movement, with the express stated purpose of preventing the transfer of power,

No the stated purpose was to lobby congress to reject the electors from states that had elections that failed certification. Thus throwing the election to the House of Representatives.
A process laid out in the Constitution.

[Toranth]

...
Ah, yes, attacking police in DC on January 20th and burning things was to "lobby congress" through "a process laid out in the Constitution". The little known "That's (D)ifferent" amendment.

There was a movement to lobby electors and Congress - and it ended when Congress tallied the votes. That was weeks before the violent mob attacked the inauguration. Even you know how to use a calendar, right?

[Darth Buckeye]

https://wapo.st/46G3NI0

From the Washington Post, no less. There were riots. And if you read the Time Magazine expose from early 2021, the Dems + Antifa were planning riots in all major cities if Trump had been reelected.

https://time.com/5936036/secret-2020-election-campaign/

[Tim]

Yeah, I would really see no problem with regarding participants in such acts as disqualified under Section 3, if they had previously given an oath.

[Voize]

 

In 2017, there were violent riots at Trump’s inauguration

near his inauguration maybe, there were certainly lots of protests in DC and elsewhere, and some of them were violent. I don’t recall any riots near the Capitol though.

aimed at preventing the peaceful transfer of power.

Interviews and statements by organizers support that they wanted to disrupt the ceremony, and the parade, and blockade and sit-in and generally annoy everybody. So I agree they wanted it not to be peaceful, and maybe some individuals thought if they were disruptive enough they could actually prevent Trump from assuming the office – which is ridiculous, he became President at noon whether there was a ceremony or not – but not that the organization believed its actions could actually prevent the transfer. That's very different from what the 1/6 group is accused of, there is ample evidence they intended to prevent Congress from performing a duty that was necessary in order for the Presidency to transfer.

[Toranth]

Why do you think Trump would have become President at noon on January 20th, if he had been unable to take the oath as required by the Constitution?

And how is a group of people planning violence to prevent the peaceful transfer of power (even if they were, as you assert, wrong) different than a group of people planning violence (as you claim) to prevent Congress from performing a duty that was necessary in order for the Presidency to be transferred at some point in the future?

[BillyG]

Every presidential election there’s alternate electors in case an election challenge succeeds. Al Gore and Hillary Clinton had them. JFK "grabbed" Hawaii's electorals votes.

[Kleppe]

"Making a case before a court in a US state is a “vile, un-American power grab” because nothing says “grab” like petitioning a court for a legal ruling."

You realize the very things you *just* criticized Trump for in the previous paragraph were him trying to contest the election through the legal process, right?

[Tim]

If* it's the constitution that abridges democracy on that point, and the efforts now are to enforce it, then that would be called "faithful originalist constitutionalism, as opposed to lawlessness".

* That's not a trivial "if". Arguments on what the law actually is a reasonable. If you're not concerned about the legal question, on the other hand, then this comment you just made is just an example of lawlessness. (Another alternate approach you could take if you think disqualification is a bad idea would be to argue that Congress should pass something to remove any question of Section 3 disqualification, like the amendment says they can do. I'm about 6 or 70% convinced that would be a good idea, myself.)

[Alan Vanneman]

I hope Professors Volokh and Blackman read this article. It might prove instructive!

[Darth Buckeye]

The question comes down to “what is an insurrection?” If we allow any secretary of state (or bureaucrat in a secretary of state’s office) to make this decision, and keep a “bad person” from being eligible to be president, where will this stop? Will it become permissible for a person in a county recorder’s office to prevent a member of a disfavored group from recording a deed? Can an employee in a state secretary of state’s office refuse to accept an application for a disfavored group to form a corporation?

Will the IRS be permitted to deny 501(c)(3) status to a disfavored group? Oh, wait, the Supreme Court already allowed the IRS to do that with the Bob Jones vs. United States decision.

[Krayt]

That this is a debated question means the issue is already off the table, as it has entered the realm of motivated partisans and lawyers in courts trying to disable political opposition.

This is putrid.

Giant issues at the constitutional level should be obvious, as with approval of an amendment. The ERA is a great example. If you are weaseling around in courts trying to get a judge to declare a new amendment, when it's supposed to be obvious to all, to give confidence to The People, and The Several States, to quote Luke, "You've failed, Your Highness."

So too, here. Two impeachments failed at removal, because of no national concensus that that should happen.

[Tim]

In the second one, I thought the Republican senators who voted against it mostly said that they didn't think they *could* convict after he left office. Not that they didn't think it should happen, or anything about whether there was national consensus

[Krychek_2]

There may be close cases in which whether something was an insurrection is up for dispute, but this is not it. He tried to seat phony electors in multiple states. He egged on a mob to go to the Capitol in an attempt to prevent the votes from being certified. He tried to get the Vice President to overturn an election. Whatever may be the appropriate remedy, this sure looks, walks and quacks like an attempt at an insurrection.

[Darth Buckeye]

By “phony electors” you mean the slates of alternate electors that his campaign proposed. His was not the first campaign to do this; but if taking this action constitutes “insurrection,” then it will be the last. Let's just dispense with elections and let our "betters" choose our leaders.

[Krychek_2]

His campaign did more than "propose" them. They signed fraudulent certificates of election and tried to get their votes counted rather than the votes the duly elected electors. Every time I think Trump supporters have reached the ultimate pinnacle of revisionism and gaslighting, they outdo themselves.

[damikesc]

Which has been done repeatedly in the past.

History did not begin in 2020.

[Don Nico]

"but this is not it. "
Because you say so. Let a court decide. That is the way things are done (or at least should be done) in America.

[Krychek_2]

A trial court in Colorado has in fact already decided that. I'm betting that on the insurrection issue, the Colorado Supreme Court does the same thing.

[Nameless But Highly Opinionated]

The Colorado trial court can only decide for Colorado. Others are not bound by their factual assessments.

[Dan Schiavetta]

Offensive non mutual collateral estoppel is a thing.

[Nameless But Highly Opinionated]

It would be discretionary in such an instance (as always; it's either discretionary or prohibited, but never required). E.g. If Colorado decides that Trump committed insurrection, Ohio is under no obligation to rely on that conclusion.

[Don Nico]

True, so let's see this play out to SCOTUS if it goes that far.

Just in case you'd like to know, I'd be very happy to see Trump ruled off the ballot immediately. The sooner the better.
As for people who want that ruling to come next summer, they are trying to fix an election undemocratically.

[John Rohan]

Insurrection is a crime. It is actually defined in 18 U.S. Code § 2383. Trump was never charged under that. In fact, no one involved in Jan 6 was charged with insurrection, much less convicted of it.

[Krychek_2]

Neither Edward Snowden nor the Walkers nor Aldrich Ames were ever convicted of treason either. Doesn’t mean a civil court might not find they committed treason were the issue ever to be litigated for one reason or another.

[John Rohan]

You contended that this "insurrection" was not even up for dispute. It obviously is, since almost 3 years later, after thousands of charges, the DOJ under Biden hasn't even charged anyone with insurrection.

[Krychek_2]

You seriously think that because someone was never charged with a crime, that that conclusively proves they didn’t commit it?

I can think of several reasons why the DOJ might not charge insurrection even if the defendant committed it. They don’t need it because they have other charges that are easier to prove. They might not have enough evidence to convict. They’ve made a decision about how to allocate resources. I mean, when the J6 defendants are already getting lengthy prison sentences adding insurrection is probably overkill.

[John Rohan]

No, I don't think that because someone was never charged with a crime, that that conclusively proves they didn’t commit it. Nor did I say anything resembling that.

I said the insurrection accusation is up for dispute. Because it obviously is.

[Krychek_2]

It’s disputed by Trump supporters, sure, just like evolution is disputed by the Creation Research Institute. But is it a legitimate dispute? I don’t think so. And the one court that’s looked at it agrees with me.

To recap, he tried to seat phony electors, sent a mob to the Capitol, and leaned on the VP to essentially overturn an election. What more, in your opinion, would he have had to do to cross the line into insurrection?

[John Rohan]

Obviously not only disputed by Trump supporters, since even Biden's DoJ hasn’t charged anyone with insurrection. And keep in mind that Biden is not just a Democrat, but the very candidate that Trump (according to you) was trying to steal the election from.

Your recap is dishonest all around, and a copy and paste from the current leftist talking points. The electors were alternates in case the disputed election swung his way, and that issue hasn’t seen its day in court anyway. There’s no evidence at all that Trump sent the mob to the Capitol – in fact, he told them to march “peacefully”. He didn’t lean on Pence to overturn the election – instead he wanted Pence to refuse to certify the election results (to give time for an investigation into what he believed was widespread fraud). That’s not the same thing as overturning the results.

[Toranth]

Violate a law against insurrection?

[Randal]

Stupid, stupid Toranth. Or are you not stupid until you've violated a law against being stupid?

[David Nieporent]

.

Will it become permissible for a person in a county recorder’s office to prevent a member of a disfavored group from recording a deed?

Does the constitution expressly say that members of disfavored groups are not permitted to record deeds?

[Darth Buckeye]

Am I committing "insurrection" by opposing this logic? I guess it is a good thing I never intend to run for office. But can this also be used to bar me from government employment? Sheesh, who knew that making an unpopular legal argument could be so dangerous?

[mydisplayname]

The Bulwark, a publication of self-described anti-Trump castoffs from other publications, is the ideal medium for this author's message of hatred: those who despise democracy and the rule of law need an outlet for their vitriol. It is an instructive Amendment -- preserving the rights of some citizens while denying the rights of disfavored citizens -- and may be useful as Israel develops its initial Constitution.

To recall the history of the Fourteenth Amendment, it was proposed for ratification without the voice of any insurrectionist State and each insurrectionist state was required to ratify it before regaining any voice in either chamber of Congress. It is absurd to continue denial of desired representation using any provision of the Fourteenth Amendments as a basis: the war is over... and the Supreme Court needs the opportunity to consider the yet-unheard issue of the validity of the Fourteenth Amendment. So, keep pushing the issue!

[Brett Bellmore]

Just publishing in the Bulwark is enough to measurably lower my opinion of Somin. Seriously, the Bulwark? What an embarrassment it must be to have been reduced to that.

I agree that the mode of ratification of the 13th and 14th amendments is legally dubious. The odds of the Supreme court ever getting around to taking notice of that are somewhere between zip and nil, and only rise that high because odds can't be negative.

About the only circumstance under which I could see the Court actually addressing that issue is if the federal government tried to ratify some new amendment by the same means. And under those circumstances they'd probably refuse the case as a matter of personal survival...

[bernard11]

Just publishing in the Bulwark is enough to measurably lower my opinion of Somin. Seriously, the Bulwark? What an embarrassment it must be to have been reduced to that.

This is droll, considering some of the sources you seem happy to rely on.

[The Margrave of Azilia]

Let some Democratic state sue Trump in the Supreme Court to stop him trying to get on the ballot. Or let some Republican state sue the people trying to keep Trump off the ballot.

Then let the Supreme Court hear the case on an expedited schedule, and let us know promptly if the guy is eligible or not.

[Nameless But Highly Opinionated]

Courts – including SCOTUS – exist to decide cases and give orders, not to decide questions. Parties to a case are legally bound to follow orders. Courts of the same sovereign may consider a certain person’s claim to be res judicata. Lower courts whose actions are overturnable by SCOTUS are not legally bound by the court’s judgment but are bound (by the convention of vertical stare decisis) by SCOTUS’ opinion. (The only consequence for disobeying the convention is getting overturned; it is only possible to enforce the convention cases where the lower action can be overturned.)

1) Congress can refuse to seat a candidate that SCOTUS has already stated is eligible.
2) Congress can seat someone who has a majority of electoral votes that SCOTUS has previously stated is not eligible.
3) Since the 14th amendment says nothing about ballot exclusion as opposed to holding office, states may include someone on the ballot whom SCOTUS says is ineligible. (Perhaps Congress could require that congressional candidates be excluded from the ballot under its Art I Sec. 4 powers, but they’d need legislation to that effect.)
4) I believe they may exclude a presidential candidate whom they believe ineligible but that SCOTUS says is eligible. It is the case that of state officials (that New Mexico guy’s case is proof). I believe that states can add qualifications for Congress and the Presidency; I am aware that people disagree. Note that even if Thornton was rightly decided (it wasn't), its logic doesn't extend to presidential elections.

[The Margrave of Azilia]

I was hoping the *mystique* of the Court would for once serve a good purpose and get general acquiescence to its decision if any.

[Voize]

 

Since the 14th amendment says nothing about ballot exclusion as opposed to holding office, states may include someone on the ballot whom SCOTUS says is ineligible.

Ballot eligibility is a matter of state law.
The Texas Election Code provides that candidates determined to be ineligible are omitted from the ballot. That determination may be judicial or administrative (see Texas Election Code §145.003(f))

[Randal]

#2 is wrong. Congress could try, but SCOTUS would invalidate.

#4 misses the point. If a state supreme court decides that pursuant to state law, a person is ineligible because 14/3 disables them, SCOTUS could review that determination. (The state could still keep the person off the ballot for some other reason, but who cares? We're not talking about candidates who wouldn't be on the ballot anyway.)

[Don Nico]

"exist to decide cases and give orders"
That is why the man said "state sue Trump in the Supreme Court"

[bookwork83]

Can congress (or the supreme ct) remove biden via this without going through impeachment ?

[John Rohan]

Section 3 bans anyone from state or federal office who previously held certain public offices and “engaged in insurrection” against the United States or gave “aid or comfort to the enemies thereof.” Donald Trump is disqualified under Section 3 because of his attempt to use force and fraud to overturn the results of 2020 election, and especially because of his role in instigating the January 6, 2021 attack on the Capitol.

There are several problems with this, I’m not even a lawyer and I can see them.

First of all, Trump wasn’t charged with insurrection, much less convicted of it (18 U.S. Code § 2383). In fact NO ONE connected to Jan 6 was even charged with insurrection, so you really don’t have a leg to stand on for that.

Second of all, “Trump’s role”. What role? The Jan 6 committed tried like hell to find a smoking gun that said Trump ordered or instigated the riot. They couldn’t find it.

Third of all, regarding the “use of fraud to overturn the election”, well the jury is still out on that. Literally.

Finally, Trump was already tried for this. He was impeached in the House and acquitted in the Senate. So he’s already been tried and acquitted. Therefore, what legal grounds would you have for barring him under the 14th?

[mydisplayname]

But, you have seen the circumcision scars on those who make the argument, so you must submit to their reading of history!

You are correct that "Trump wasn’t charged with insurrection, much less convicted of it" -- and, in fact, it is impossible for any siting President to be an insurrectionist. But again, look at the circumcision scars on those who make the argument and that alone should convince you of your wrongness. Or, as a song from the musical Hair puts it, "So they say!"

[Alpheus W Drinkwater]

14A section 3 doesn't require that the disqualified person be charged or convicted of insurrection. It's a strange and oddly worded section of the amendment, but we're stuck with it until it's changed.

[BillyG]

Apologize for promoting anti Trump hoaxes. Admit you fell for them. Admit you called for Trump's removal in 2000 based on a hoax. Then we'll start addressing your claims here. Until then you're just another TDS victim.

[Lee Moore]

There are “moral” and “pragmatic” grounds for disqualifying election candidates now ?

Even if this thought pops unexpectedly into your mind is it wise to commit it to paper ?

[Kleppe]

The same people who cry about democracy being under assault are the ones saying I shouldn't be allowed to vote for my preferred candidate. Go back to the USSR.

[ReaderY]

Somebody once said something about the use of moral and pragmatic grounds:

Alice More: Arrest him!
More: Why, what has he done?
Margeret More: He’s bad!
More: There is no law against that.
Will Roper: There is! God’s law!
More: Then God can arrest him.
Alice: While you talk, he’s gone!
More: And go he shoild, if he was the Devil himself, until he broke the law!
Roper: So now you’d give the Devil benefit of law?
More: Yes. What would you do, cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would uou hide, Roper, all the laws being flat? This country’s planted thick with laws from coast to coast - Man’s laws, not God’s. And if you cut them down - and you’re just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Robert Bolt, A Man for All Seasons

[Darth Buckeye]

Great scene!

[mydisplayname]

Perfect!!

[Lee Moore]

It is indeed a splendid scene. But More’s argument that the Devil should get benefit of law “for my own safety’s sake” is undermined by the closing voiceover of the movie, which after noting that More’s head was displayed on traitor’s gate for a month, concludes :

“Richard Rich became Chancellor of England, and died in his bed.”

Virtue is its own reward, for there may be no other.

[Toranth]

There were actual insurrections that received support from still serving politicians (such as the CHAZ/CHOP), and yet no one even pretends to try to use the 14th to remove them from office.
Of course, considering that the supporters of those movements were all Democrats, it isn't surprising that the Democrats and their state governments are not going there.

Unfortunately for them, Presidential elections involve all the states, and when red states decide to respond but removing the Democrat candidate from their ballots, it's going to turn out badly. This sort of precedent always ends badly.

[Dr. Ed 2]

Only because the Red States don't have the guts to do what the Blue States do -- they're *still* arresting people for Jan 6th -- can you imagine what a similar effort toward BLM would do?

Likewise, the left set the precedent that shooting an unarmed trespasser (Ashley Babbitt) was acceptable, hence shooting Antifa is acceptable. Etc...

[Randal]

I don’t think CHAZ/CHOP disputed the authority of the United States. Just local police jurisdiction. So maybe an insurrection against the state of Washington, but not the US. Even that would be a tough case to make, since their demands were political (slash police budgets, for example)... not to take over the government.

[damikesc]

"I don’t think CHAZ/CHOP disputed the authority of the United States."

They SPECIFICALLY did.

Saying "You have no authority here" is an insurrection.

But it's OK, because you supported it.

[Social Justice is neither]

Fuck off you marxist cunt. We understand you abhor anything to the right of Mao and that Mao and Stalin's only fault is not implementing it right.

So to be consistent with your open border zealotry, when exactly is the demand that Israel open it's border unconditionally to Gaza and the West Bank? Right.

[Michael Ejercito]

I concur with Jack Marshall.

https://ethicsalarms.com/2023/12/01/first-open-ethics-forum-of-december-lets-have-anthony-fauci-throw-out-the-first-pitch/comment-page-1/#comment-860202

I’ve read Illya on this issue before—Trump Derangement has eaten his usually reliable brain, as it has every legal scholar who supports this absurdly attenuated theory. Hey, I’d love to see Trump prevented from running—legitimately. It’s sad and scary to read a piece like this. It shows just how smart someone can be and still have bias make them stupid.

[David Nieporent]

Always a mistake. Jack Marshall is a moron. If he gets anything right, it's by accident and has nothing to do with law or ethics.