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

[JayUtah]

So you're saying that since Biden...

No. As even a casual reading of my post would suggest, I made no such claim.

 

[Thermal]

If the blue States disqualify Trump then the red States will disqualify Biden.

Won't that be fun?

You do understand that your blatant subtext there is that Red States are inherently and openly dishonest, right?

 

[Hercules56]

I have a great idea! Let's let the trials play out and let the American people decide for themselves who they want to be President. Crazy huh???

 

[Thermal]

I have a great idea! Let's let the trials play out and let the American people decide for themselves who they want to be President. Crazy huh???

Way ahead of you, brah. We're already doing that. Discussing the surrounding events and possibilities is still interesting.

 

[Paul2]

I have a great idea! Let's let the trials play out and let the American people decide for themselves who they want to be President. Crazy huh???

It's crazy only if you think the 14th Amendment is crazy.

Haven't I heard that "let the American people decide for themselves" line before? Somebody by the name of McFonnel, or McGlonnel, or McShmonnel?

 

[JayUtah]

I have a great idea! Let's let the trials play out...

Which trials, specifically?

...and let the American people decide for themselves who they want to be President. Crazy huh???

The will of the people is not the highest law of the land. The Constitution is—expressly so that the will of the people not devolve to roughshod. If the Constitution lays out the requirements for eligibility to any particular office, and a person is judged by due process according to those requirements not to be eligible, then the will of the people is of no matter.

 

[Hercules56]

Which trials, specifically?



The will of the people is not the highest law of the land. The Constitution is—expressly so that the will of the people not devolve to roughshod. If the Constitution lays out the requirements for eligibility to any particular office, and a person is judged by due process according to those requirements not to be eligible, then the will of the people is of no matter.

Nobody here has mentioned anything about Due Process with regard to the 14th Amendment and disqualifying Trump. How exactly would this go about? Who in each state would decide that Trump is disqualified and would Trump have the ability to appeal? Would the federal courts have the authority to review these decisions? Supreme Court?

 

[JayUtah]

Nobody here has mentioned anything about Due Process with regard to the 14th Amendment and disqualifying Trump.

I've written extensively about it, as have most of the people who wrote in the first page of this thread. Have you read the thread, or are you just pigeon-dropping?

How exactly would this go about?

Exactly as I wrote previously.

Who in each state would decide that Trump is disqualified...

In my state, the lieutenant governor has the authority to reject Trump for the ballot for President on the grounds that he committed acts of insurrection within the meaning of the 14th Amendment and is thus ineligible. As with all other elements of eligibility, the initial determination is made by her.

...and would Trump have the ability to appeal?

Yes. As with almost all other administrative findings, a finding of ineligibility for the ballot for any office is reviewable in administrative courts according to state law.

Would the federal courts have the authority to review these decisions? Supreme Court?

Yes, under the Federal Question doctrine. Because the 14th Amendment is considered federal law for the purpose of determining jurisdiction under Article III, any decision by a state administrative court regarding eligibility for President under that amendment is appealable to a U.S. Circult Court of Appeals and ultimately eligible for review in the U.S. Supreme Court.

 

[jt512]

I have a great idea! Let's let the trials play out and let the American people decide for themselves who they want to be President. Crazy huh???

Here's another idea: let's abide by the Constitution of the United States.

 

[jt512]

Nobody here has mentioned anything about Due Process with regard to the 14th Amendment and disqualifying Trump.

What an embarrassing thing to write given the plethora of posts that discuss due process in that regard.

How exactly would this go about? Who in each state would decide that Trump is disqualified and would Trump have the ability to appeal? Would the federal courts have the authority to review these decisions? Supreme Court?

That is described in multiple posts as well as the articles linked in the OP.

 

[TurkeysGhost]

These kinds of questions brush close to the magical thinking often seen with certain libs I've seen described as "blue-anon"

laws ain't real my man, all the cutesy legal arguments don't amount to anything if the people in positions of power aren't willing to act accordingly. Nobody is going to ride in on the white horse and vanquish Trump.

At least, hoping for some 14th amendment magic bullet is wishful thinking.

 

[Hercules56]

Here's another idea: let's abide by the Constitution of the United States.

Cool. Who in each state gets to decide if a person is disqualified under the 14th amendment? Does the accused person have the right to appeal? Is this designation open to court review and reversal? All the way up to the Supreme Court?

 

[Hercules56]

Ok so basically we should ask the supreme Court to right now decide if Donald Trump can be legally disqualified from running for president based on the 14th amendment. Im sure the 6 to 3 Conservative majority court will side with Trump.

 

[JayUtah]

Who in each state gets to decide if a person is disqualified under the 14th amendment?

Whoever in each state is designated by that state's constitution or statute as the election official. In my state it is the lieutenant governor. Many other states have a Secretary of State who performs this function.

Does the accused person have the right to appeal? Is this designation open to court review and reversal? All the way up to the Supreme Court?

Yes, for the umpteenth time, due process applies. As with any other administrative finding, it is reviewable first in the state administrative courts, then the state supreme courts. Since eligibility for a federal office under the 14th Amendment is a "federal question" within the meaning of the Federal Rules of Civil Procedure, the results are appealable to the appropriate U.S. Circuit Court of Appeals for that state. It is eligible for appeal from there to the U.S. Supreme Court, which has discretion whether to grant certiorari.

 

[JayUtah]

Ok so basically we should ask the supreme Court to right now decide if Donald Trump can be legally disqualified from running for president based on the 14th amendment. Im sure the 6 to 3 Conservative majority court will side with Trump.

No, the U.S. Supreme Court does not have original jurisdiction for that question.

Further, are you arguing that whether certain acts qualify as insurrection under the 14th Amendment should turn on whether the actor is a conservative or a liberal?

 

[Hercules56]

No, the U.S. Supreme Court does not have original jurisdiction for that question.

Further, are you arguing that whether certain acts qualify as insurrection under the 14th Amendment should turn on whether the actor is a conservative or a liberal?

The US Supreme Court is the highest court of the land and final arbiter on all legal matters. They would indeed decide if a 14th Amendment disqualification of Trump is legal. Absent his conviction for Insurrection, I seriously doubt SCOTUS would play along, especially since such designations by a state would fall squarely along party lines.

This idea is stupid. Let's convict this guy and then beat him at the polls.

 

[bruto]

I believe only one or two of the rioters were actually charged with insurrection, the Oath Keeper people. And nobody has ever suggested that they acted as part of a conspiracy under orders or direction from Trump himself.

No, but if they were charged and convicted for insurrection, this is an indication that an insurrection occurred. Trump's involvement in whatever went on that day is rather obvious, but so far an obstacle has been the question of whether it was what one can call an insurrection. Those convictions may not be enough, but I think they add to the case.

That said, I do basically agree that the best thing would be to convict him in the way he ought to be convicted, and then if he insists on running anyway, to defeat him in the polls. But given how crazy the world has become, I'm OK with keeping the 14th amendment on the back burner, and if the case for it is strong enough, and the threat real enough, I'd be happy enough if that threat caused Trump to find some excuse to back off, even if the excuse is lame, vindictive and stupid.

 

[JayUtah]

The US Supreme Court is the highest court of the land and final arbiter on all legal matters.

They are not a court of original jurisdiction except on a very narrow set of questions that doesn't include administrative law. This has been true since Marbury v. Madison, which turned on this very point and denied Marbury his review of an administrative decision precisely for the U.S. Supreme Court's lack of original jurisdiction on the matter. Marbury was required instead to submit his claim for a writ of mandamus to a lower federal court.

And no, the U.S. Supreme Court is not the "final arbiter on all legal matters." For example, matters strictly of state law are not appealable to the U.S. Supreme Court. Once decided by the highest court in the state, the matter has received final adjudication.

They would indeed decide if a 14th Amendment disqualification of Trump is legal.

Only if the question were properly presented to them. I have outlined the path by which that presentation would occur. Your fervent desire to short circuit the process or invent a new one is irrelevant.

Absent his conviction for Insurrection, I seriously doubt SCOTUS would play along...

Asked and answered. 18 U.S.C. § 2383 is the only federal statute dealing with insurrection, and it did not exist when the 14th Amendment created. Regardless, criminal conviction under that or any other statute is not a criteria for a judgment of ineligibility under the 14th Amendment by a court or an administrative official. There is no legal basis for the Court to apply a standard of proof to a question that would not otherwise attach to it.

...especially since such designations by a state would fall squarely along party lines.

Assumes facts not in evidence.

This idea is stupid.

The Constitution governs eligibility for elected office. The three branches of government together exercise due process in determining how those eligibility rules might apply to a given set of facts. Your rants to the contrary are amusing but irrelevant.

Let's convict this guy and then beat him at the polls.

Donald Trump's actions, whether rising to the level of criminal liability or not, may disqualify him from access the polls under the 14th Amendment, which is not a criminal provision. If they do and he is ruled ineligible, it literally does not matter what the electorate may or may not want.

 

[Hercules56]

They are not a court of original jurisdiction except on a very narrow set of questions that doesn't include administrative law. This has been true since Marbury v. Madison, which turned on this very point and denied Marbury his review of an administrative decision precisely for the U.S. Supreme Court's lack of original jurisdiction on the matter. Marbury was required instead to submit his claim for a writ of mandamus to a lower federal court.

And no, the U.S. Supreme Court is not the "final arbiter on all legal matters." For example, matters strictly of state law are not appealable to the U.S. Supreme Court. Once decided by the highest court in the state, the matter has received final adjudication.



Only if the question were properly presented to them. I have outlined the path by which that presentation would occur. Your fervent desire to short circuit the process or invent a new one is irrelevant.



Asked and answered. 18 U.S.C. § 2383 is the only federal statute dealing with insurrection, and it did not exist when the 14th Amendment created. Regardless, criminal conviction under that or any other statute is not a criteria for a judgment of ineligibility under the 14th Amendment by a court or an administrative official. There is no legal basis for the Court to apply a standard of proof to a question that would not otherwise attach to it.



Assumes facts not in evidence.



The Constitution governs eligibility for elected office. The three branches of government together exercise due process in determining how those eligibility rules might apply to a given set of facts. Your rants to the contrary are amusing but irrelevant.



Donald Trump's actions, whether rising to the level of criminal liability or not, may disqualify him from access the polls under the 14th Amendment, which is not a criminal provision. If they do and he is ruled ineligible, it literally does not matter what the electorate may or may not want.

I don't think this country would handle it very well if Trump was not allowed to run for president, absent being convicted of Sedition. I think it would be better for this country if we just let the trials and the election take its course. Trump losing the election due to him being disqualified from certain very liberal states may definitely give a lot of people the impression that the election was indeed unfair and rigged. And that perhaps the system itself is irreparable.

 

[JayUtah]

I don't think...

The Constitution, laws, and courts of this country don't care what you think or want.

 

[TragicMonkey]

What happens if Trump gets elected and then is found (by whatever process it is, for the sake of this question assume it's legitimate and proper and the results are accepted) ineligible for the office? Does whoever his VP is get the job? Or do they both get removed? Would we have another election, or would the Speaker get the presidency for the rest of the term?

 

[Hercules56]

The Constitution, laws, and courts of this country don't care what you think or want.

Will you respect the decision of the supreme Court when they eventually decide that Trump is indeed eligible to run for president, and these 14th amendment objections are voided?

 

[Hercules56]

What happens if Trump gets elected and then is found (by whatever process it is, for the sake of this question assume it's legitimate and proper and the results are accepted) ineligible for the office? Does whoever his VP is get the job? Or do they both get removed? Would we have another election, or would the Speaker get the presidency for the rest of the term?

The same question could be asked about Obama. What if they discovered six months into his presidency that he actually was in fact born in Kenya? Would he immediately have to pack his bags? It's my understanding that once you are sworn in you are president, and the only way to remove you is by impeachment.

 

[Hans]

What happens if Trump gets elected and then is found (by whatever process it is, for the sake of this question assume it's legitimate and proper and the results are accepted) ineligible for the office? Does whoever his VP is get the job? Or do they both get removed? Would we have another election, or would the Speaker get the presidency for the rest of the term?

VP - so trump should select the most horrific worm he can find - so that people won't convict him (in his mind) - who would be the worst possible VP choice other than Eric?

 

[JayUtah]

Will you respect the decision of the supreme Court...

I'm not sure what you mean to ask. I'm subject to the decisions of the U.S. Supreme Court, just as every other person in the country. But nothing I do as an ordinary person has the slightest to do with whether Trump is allowed on the ballot in my state. Whether I respect the Court's decision as a matter of academic approval (also irrelevant) depends on how well I would consider it to have been reasoned.

...when they eventually decide that Trump is indeed eligible to run for president, and these 14th amendment objections are voided?

Assumes facts not in evidence.

 

[Thermal]

The same question could be asked about Obama. What if they discovered six months into his presidency that he actually was in fact born in Kenya? Would he immediately have to pack his bags? It's my understanding that once you are sworn in you are president, and the only way to remove you is by impeachment.

Seems like you could procedurally be impeached for defrauding the electorate, even after the fact?

 

[JayUtah]

What happens if Trump gets elected and then is found (by whatever process it is, for the sake of this question assume it's legitimate and proper and the results are accepted) ineligible for the office? Does whoever his VP is get the job? Or do they both get removed? Would we have another election, or would the Speaker get the presidency for the rest of the term?

The Constitution doesn't provide for recalling a President. A strict reading of the Constitution parses "eligible" as pertaining to the election only, so you can make the case that a once the Electoral College has voted and the vote is certified, the matter has been closed. A person later discovered to have been ineligible for the office could conceivably continue to hold it. But this seems unlikely and suspiciously textualist.

The only way a President leaves office under the Constitution is death, resignation, the expiration of the term, or impeachment followed by conviction. That doesn't count temporary incapacitation. Since an impeachable offense is whatever the House decides an impeachable offense is, that would certainly be an avenue for removing a President discovered to have been ineligible. In my state, a candidate declares under oath that he is an eligible candidate (so far as he is able to determine) for President, so if the candidate lies under oath then this can be considered a "High Crime" or "Misdemeanor."

Succession is straightforward. If the President is removed for any reason, the Vice President becomes President unless the Vice President is separately ineligible. The eligibility of the President doesn't affect the eligibility of the Vice President.

 

[Hercules56]

Seems like you could procedurally be impeached for defrauding the electorate, even after the fact?

Nope. Full, regular old impeachment. Then trial by Senate. Republicans could decide to NOT convict cuz they like Trump's hairstyle. It sux.

 

[Thermal]

Nope. Full, regular old impeachment. Then trial by Senate. Republicans could decide to NOT convict cuz they like Trump's hairstyle. It sux.

He didn't escape the last Senate conviction my much of a margin. Majority against him, but not quite the 2/3 needed. Only a few votes off iirc.

 

[Hercules56]

I'm not sure what you mean to ask. I'm subject to the decisions of the U.S. Supreme Court, just as every other person in the country. But nothing I do as an ordinary person has the slightest to do with whether Trump is allowed on the ballot in my state. Whether I respect the Court's decision as a matter of academic approval (also irrelevant) depends on how well I would consider it to have been reasoned.



Assumes facts not in evidence.

FACT: anyone can be accused by anyone, of insurrection. Hence the problem with the wording of the 14th Amendment. It should be updated to refer to "conviction of insurrection, treason or espionage against the United States".

IMHO. I dont like the idea of every Tom, Dick and Jane being able to accuse someone of insurrection without a trial.

 

[Hercules56]

He didn't escape the last Senate conviction my much of a margin. Majority against him, but not quite the 2/3 needed. Only a few votes off iirc.

I dont like 66 votes to convict. Its too extreme a tyranny of the minority.

I think supermajority of 60 is better. But again we'd have to amend the USC.

 

[JayUtah]

FACT: anyone can be accused by anyone, of insurrection.

Yes, that's generally true of all people and all accusations. The question then follows, To what consequence?

Hence the problem with the wording of the 14th Amendment.

The wording as it stands is clear enough to enable the appropriate law. Holding office in the United States is not a right. The standard of a preponderance of evidence is suitable enough for all other similar questions. A tort is not a crime, but I can be held liable for my tortious actions under a mere preponderance of evidence and deprived forcibly of my property as a result. A person's actions may rise high enough to be deprived of a privilege under the law without also having to rise so high as to require punishment. Not being allowed to wield the authority of the state is not the same as simply remaining a free person.

It should be updated to refer to "conviction of insurrection, treason or espionage against the United States".

Feel free to propose that amendment.

IMHO. I dont like the idea of every Tom, Dick and Jane being able to accuse someone of insurrection without a trial.

A finding under the 14th Amendment is reviewable up to and including the highest level of the judiciary. A very large part of this thread has been a demonstration of how and why due process applies in the proposed case.

 

[Hercules56]

Yes, that's generally true of all people and all accusations. The question then follows, To what consequence?



The wording as it stands is clear enough to enable the appropriate law. Holding office in the United States is not a right. The standard of a preponderance of evidence is suitable enough for all other similar questions. A tort is not a crime, but I can be held liable for my tortious actions under a mere preponderance of evidence and deprived forcibly of my property as a result. A person's actions may rise high enough to be deprived of a privilege under the law without also having to rise so high as to require punishment. Not being allowed to wield the authority of the state is not the same as simply remaining a free person.



Feel free to propose that amendment.



A finding under the 14th Amendment is reviewable up to and including the highest level of the judiciary. A very large part of this thread has been a demonstration of how and why due process applies in the proposed case.

Fine, go ahead, disqualify him from the ballot.

It will be quite the **** show

 

[JayUtah]

Fine, go ahead, disqualify him from the ballot.

I'm quite willing to let the appropriately designated powers decide whether Trump is eligible under the 14th Amendment. I'm interested in the reasoning on both sides. If you bothered to read anything I wrote, you'd find among my statements the opinion that any party denied eligibility for President on any reasonable contestable grounds would be remiss in not challenging the finding.

It will be quite the ********.

I don't approve of government by tantrum. The notion that we should disregard the rule of law just because some people will behave badly unless they get what they want doesn't seem especially civilized.

 

[theprestige]

Holding office in the United States is not a right.

I would argue that holding elected office is a right, not of the elected official, but of the people that elected him. Otherwise, what's the point of having elections?

Being a right, abridging it is not something that should be done lightly, or out of partisan political expedience.

 

[Hercules56]

I'm quite willing to let the appropriately designated powers decide whether Trump is eligible under the 14th Amendment. I'm interested in the reasoning on both sides. If you bothered to read anything I wrote, you'd find among my statements the opinion that any party denied eligibility for President on any reasonable contestable grounds would be remiss in not challenging the finding.



I don't approve of government by tantrum. The notion that we should disregard the rule of law just because some people will behave badly unless they get what they want doesn't seem especially civilized.

We rule by tantrum ALL the time. We have a long history of passing new laws and rules simply because a very large and loud mob caused mayhem or disorder. Or even simply peaceful protest.

 

[JayUtah]

We rule by tantrum ALL the time.

Does that make it civilized or desirable?

 

[Hercules56]

Does that make it civilized or desirable?

Mass protest seems to have been used many times to stimulate progressive change in the USA. We clearly accept it as an acceptable means for change.

 

[JayUtah]

I would argue that holding elected office is a right, not of the elected official, but of the people that elected him. Otherwise, what's the point of having elections?

Yes, there is the very important (but somewhat more abstract) notion of the rights of an electorate in representative government. The right to elect the leaders we choose is the heart and soul of what we consider to be free and fair government. An individual's right to vote is the sine qua non of that system.

But I see a difference between the electoral compact, in which the people have a right for somebody to hold that office, and a right asserted by a specific person to seek or hold an office. The rights are vested differently (although toward a related end) and so, in my view, operate differently.

Being a right, abridging it is not something that should be done lightly, or out of partisan political expedience.

And thus the inherent tension between the electoral compact and what we as people have determined are some basic limits on the rights of particular persons to seek and hold office. We categorically abridge the right of a particular individual to seek office based on such flimsy things as age or residency. We sometimes impose term limits. We gerrymander. Should Wyoming be allowed to elect a 9-year-old to the Senate? Should the people of Alabama be allowed to elect Vladimir Putin as their governor? Absurd questions, yes, but they illustrate why some feel we need categorical guardrails.

For me, such a criterion as, "Did this person previously try to overthrow the legitimate government of our country?" is reasonable to consider when deciding categorically whether a person should be eligible to help govern it. But with such a weighty matter, I really do expect it to be a matter of meaningful due process.

 

[JayUtah]

Mass protest seems to have been used many times to stimulate progressive change in the USA. We clearly accept it as an acceptable means for change.

You've ventured far afield. I don't see how getting one guy on one party's ballot for one election is the kind of "progressive change" I think you're referring to history. What I see in the threats of violence unless Trump is assured eligibility for the Presidency and/or exonerated of criminal charges is a localized tantrum.