Ed Is Trump disqualified from the ballot by the 14th Amendment?

TellyKNeasuss said:
Now that the Supreme Court has accepted the appeal, what are the possible decisions:
1) Rule that Jan. 6 did not qualify as an insurrection.
2) Rule that Trump has not been proven to have been a participant in what happened at the Capitol.
3) Rule that the 14th amendment only prevents insurrectionists from taking office but not from running for office and that it would be a violation of a political party's constitutional rights to prevent them from running the candidate of their choice.
4) Rule that the parties rather than the govt. organize the primary elections and that it's up to the political parties whether they want to allow an ineligible person to compete.
5) Rule that the determination of the eligibility of candidates under the 14th amendment is the purview of the legislative branch and not the courts.
6) Rule that the 14th amendment does not apply to the presidency.
7) Rule that the hearings on the disqualification did not afford Trump a sufficient opportunity to present his case.
8) Rule that since the ballots have been printed and mailed out that it's too late to remove Trump from the ballot.
9) Uphold the Colorado decision.

What others have a missed?
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10) Only Congress can enforce the 14th Am Sec 3.
 
JayUtah said:
Are you certain? The petition for writ of certiorari most certainly raised two relevant questions: whether the action of Jan. 6, 2021 constituted an insurrection within the meaning of the 14th Amendment, and whether President Trump's activity on that day constituted engagement. The petition contends that the Colorado court erred in deciding those points. The order granting certiorari did not exclude any element of the question. However, the exact argument won't be properly before the Court on appeal unless it appears in Petitioner's brief on the merits, due Jan. 18 of this year.
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Thank you for the correction.
 
JayUtah said:
That's true. However it was a point raised in the petition, so it should be on the list of possibilities.
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Is it? You can petition/argue anything. That doesn't mean it is factual.

From my perspective neither a strict textualist or a justice obsessed with original intent could rule that Congress must decide on whether a candidate has engaged in an insurrection.

I also think the other arguments posed by Trump's lawyers a major stretch.

IE:
  1. That Trump never took an oath to support the Constitution
  2. That the President isnt an officer/official.

I do however think this court will rule agree with Trump's lawyers on the final point as an out to support Trump...as opposed to the Constitution.
 
Hercules56 said:
No, 14th Am has nothing to do with "violating the Presidential oath of office".

Its if you committed insurrection and if you previously swore an oath to the USC while a Federal officer.
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Congress has the Ability to inforce the 14th Amendment section 3, they do not have to enforce section 3 and have not done so in the past.
 
Hercules56 said:
No, 14th Am has nothing to do with "violating the Presidential oath of office".

Its if you committed insurrection and if you previously swore an oath to the USC while a Federal officer.
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acbytesla said:
Is it? You can petition/argue anything. That doesn't mean it is factual.

From my perspective neither a strict textualist or a justice obsessed with original intent could rule that Congress must decide on whether a candidate has engaged in an insurrection.

I also think the other arguments posed by Trump's lawyers a major stretch.

IE:
  1. That Trump never took an oath to support the Constitution
  2. That the President isnt an officer/official.

I do however think this court will rule agree with Trump's lawyers on the final point as an out to support Trump...as opposed to the Constitution.
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Great when the Supreme Court also give Trump absolute Immunity, that will transfer over to Biden's presidential Administration as well, and Biden can become our new Emperor and put the Supreme Court and Trump on a Rocket to Mars.
The Supreme Court is unlikely to give Biden more power knowing Trump will be convicted before Super Tuesday in May.
 
acbytesla said:
Is it? You can petition/argue anything. That doesn't mean it is factual.
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It doesn't have to be a fact to be in the petition and included in a list of possible outcomes. The petition makes claims that are likely to be included in a brief on the merits, and whose evidence will be tried to determine what, if anything, emerges as fact. The petitioners have advanced a legal theory that that Congress must supply something to enforce. The respondents will no doubt rebut it. The Court will decide which legal theory to adopt. That makes legislative enforcement a possible outcome.
 
Crazy Chainsaw said:
Congress has the Ability to inforce the 14th Amendment section 3, they do not have to enforce section 3 and have not done so in the past.
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False. The Enforcement Act of 1870 provided a civil cause of action from section 3 by which a quo warranto action could be brought in court.

But the common rebuttal is that section 5 says Congress may legislate accordingly, not that it must. An explicit grant of authority is necessary to accommodate the enumerated-powers structure of Congressional authority.
 
JayUtah said:
It doesn't have to be a fact to be in the petition and included in a list of possible outcomes. The petition makes claims that are likely to be included in a brief on the merits, and whose evidence will be tried to determine what, if anything, emerges as fact. The petitioners have advanced a legal theory that that Congress must supply something to enforce. The respondents will no doubt rebut it. The Court will decide which legal theory to adopt. That makes legislative enforcement a possible outcome.
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Legislative Enforcement would undoubtedly lead to a Civil War eventually as one side would always be trying to remove the other side from power.
I don't believe the Court will go that way, look,at Empeachment that is a failed political process that never works.
 
JayUtah said:
It doesn't have to be a fact to be in the petition and included in a list of possible outcomes. The petition makes claims that are likely to be included in a brief on the merits, and whose evidence will be tried to determine what, if anything, emerges as fact. The petitioners have advanced a legal theory that that Congress must supply something to enforce. The respondents will no doubt rebut it. The Court will decide which legal theory to adopt. That makes legislative enforcement a possible outcome.
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In other words, SCOTUS will become an activist court and make law out of whole cloth?
 
Crazy Chainsaw said:
Legislative Enforcement would undoubtedly lead to a Civil War eventually as one side would always be trying to remove the other side from power.
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Only insofar as either side keeps committing insurrections. The claim is simply that the amendment is not self-executing, and requires Congress to explain how section 3 should be enforced against the different roles of government. It's not tantamount to trying to pass laws outlawing one side or the other.

The analogy is the amendment outlawing alcoholic beverages, and the Volstead Act in Congress that provided actual laws people could be charged with. Some have wrongly pointed to 18 U.S.C. § 2383 as just such a law, but it doesn't fit.
 
acbytesla said:
In other words, SCOTUS will become an activist court and make law out of whole cloth?
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No, the claim is that something like the former Enforcement Act is required before section 3 can be used to disqualify a candidate for President. The argument is that courts cannot make law out of whole cloth, and that section 3 cannot be considered self-executing.
 
JayUtah said:
No, the claim is that something like the former Enforcement Act is required before section 3 can be used to disqualify a candidate for President. The argument is that courts cannot make law out of whole cloth, and that section 3 cannot be considered self-executing.
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Again, this would be law taken out of their ass. The statute doesn't say this. It wasn't required when others were disqualified in the past. There's a distinct difference between a court determination that an individual acted in a specific way and creating a requirement for Congressional legislation
 
JayUtah said:
No, the claim is that something like the former Enforcement Act is required before section 3 can be used to disqualify a candidate for President. The argument is that courts cannot make law out of whole cloth, and that section 3 cannot be considered self-executing.
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If Section 3 is self-executing and requires no further legislation or criminal code or whatever to be enforced, what's the point of Section 5?


Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
 
acbytesla said:
Again, this would be law taken out of their ass. The statute doesn't say this.
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It depends on how you interpret the scope of §5. That's a valid, open legal question.

It wasn't required when others were disqualified in the past.
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It was in some cases and wasn't in other cases. Notably in Victor Berger's case, the Congress maintains sole control over who can be seated as members. To require Congress to make a law before it can act according to what's already set down for it is absurd. That same absurdity doesn't apply in the case of the President or, say, a judge.

There's a distinct difference between a court determination that an individual acted in a specific way and creating a requirement for Congressional legislation
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A justiciable cause of action must be present before a case is properly before any court. These causes of action are generally created by legislatures. One of the questions the Supreme Court will have to determine is whether a justiciable cause of action already exists by virtue of section 3 itself. Again, this is precisely the Court not legislating. A decision that a legislatively-created cause of action must first exist is the opposite of legislating from the bench.
 
JayUtah said:
A justiciable cause of action must be present before a case is properly before any court. These causes of action are generally created by legislatures. One of the questions the Supreme Court will have to determine is whether a justiciable cause of action already exists by virtue of section 3 itself. Again, this is precisely the Court not legislating. A decision that a legislatively-created cause of action must first exist is the opposite of legislating from the bench.
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You're kidding? Right? Are you suggesting that section 3 of the 14th Amendment doesn't?

That they created the Amendment for "kicks?"
 
tyr_13 said:
I'm not sure if I worded it extremely badly or if you've misread, but first I wasn't using an analogy and second I'm not saying there was no process. I'm specifically being critical of those who are arguing that the only level of process due could be the same as in criminal trials.

I think we are agreeing generally.
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I do agree. I'm confused (nothing new) about what I thought was an analogy you were making but I see no need to revisit it given the speed this thread is moving.
 
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