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

[JayUtah]

The state would have to prove, at least in its own court system, that it had a justification that agreed with both state law and the US constitution for banning Biden from the ballot.

A state supreme court ruling on a state law has plenipotentiary power. But when a state court invokes federal law to rule on the propriety of state actions, it raises a federal question that can be appealed from a state supreme court into the U.S. Supreme Court, which is what happened. The power granted to state courts to apply federal law is delegated and may be resumed upon appeal. What we're grumbling about today is not that Colorado's decision was struck down. That was a foregone conclusion. My grumble, at least, is the overreach. The Court decided that Colorado couldn't decide for everyone—fine. But it shut down any other avenue of judicial fact-finding and law-debating and punted the question to an obviously ineffectual Congress. It's a performative finding that does nothing except make it harder for any other court to apply a principle from the Constitution.

 

[newyorkguy]

I can wait. I don't have a good feeling abut this. I was hoping that SCOTUS might just somehow decline to hear the case -meaning the appeals are dismissed, the Colorado ruling stands.

I'm not surprised -- disappointed -- but not surprised.

 

[JayUtah]

With the exception of Birther silliness, which was laughed out because of no serious evidence.

That was the impetus. Before the Birthers there was absolutely no enforcement mechanism for any qualification to hold federal office. Even though there was no serious evidence, it did wake up some legislatures to the what-ifs. Some passed individual state laws with varying enforcement mechanisms to ensure that people running for President in their state were qualified. My state simply requires you to provide a sworn statement that you are eligible. The now-moot Illinois case tried to make hay out of their similar law. But the causes of action vary from state to state.

 

[Skeptic Ginger]

After a little more consideration, I've decided that I am thrilled by the SC decision. I've always wanted to be on the presidential election ballot, and if individual states can't determine who gets on the presidential ballot then states' legal requirements such as having to get a petition signed by X voters (where X >> 1,000 in most states) are unconstitutional, meaning that it should be easy and inexpensive to get on the ballot.

That's an interesting point. Those petition requirements are not in the Constitution.

What if the states wanting to drop Trump from their ballots made up a new state requirement that mimicked the 14th Amend. but was their own state law they were following?

 

[Ziggurat]

That's an interesting point. Those petition requirements are not in the Constitution.

What if the states wanting to drop Trump from their ballots made up a new state requirement that mimicked the 14th Amend. but was their own state law they were following?

There's a difference between a process requirement and a qualification requirement. States can impose the former. The latter are determined by the Constitution.

 

[zorro99]

Now if Trump wins and Democrats win both Houses, they can pass legislation removing Trump from office for insurrection, in accordance with the Supreme Court.

 

[Aridas]

Now if Trump wins and Democrats win both Houses, they can pass legislation removing Trump from office for insurrection, in accordance with the Supreme Court.

It would have to be quite the win. Veto power still exists.

 

[Hercules56]

Now if Trump wins and Democrats win both Houses, they can pass legislation removing Trump from office for insurrection, in accordance with the Supreme Court.

Nope.

The only way to remove President from office is by impeachment/conviction.

 

[theprestige]

Nope.

The only way to remove President from office is by impeachment/conviction.

I'm not sure conviction removes a president from office.

 

[angrysoba]

I'm not sure conviction removes a president from office.

Presumably conviction for insurrection would, or we would just see extremely creative justicing.

 

[Hercules56]

I'm not sure conviction removes a president from office.

I meant impeached then convicted by Senate. It is still the only legal way to remove a President.

 

[theprestige]

Presumably conviction for insurrection would, or we would just see extremely creative justicing.

In some jurisdiction where insurrection is a crime, maybe. Is the crime of insurrection actually defined anywhere in federal law?

 

[JayUtah]

In some jurisdiction where insurrection is a crime, maybe. Is the crime of insurrection actually defined anywhere in federal law?

Yes and no.

18 U.S.C. § 2383 provides a criminal penalty for "insurrection," including a bar from holding office. But it does not define the elements of the crime of insurrection and is therefore unenforceable. We have discussed this several times previously in the thread.

 

[JayUtah]

Now if Trump wins and Democrats win both Houses, they can pass legislation removing Trump from office for insurrection, in accordance with the Supreme Court.

That might be an ex post facto law and therefore unenforceable for the events of Jan. 6, 2021.

The only way to remove President from office is by impeachment/conviction.

We did sort of go through this without resolution. The situation in which a person acts in an office that he does not lawfully hold is different than one in which a person is removed from office to which he had been legitimately elected or appointed. However, I tend to agree that there is no way Congress can fix this by passing a law after Trump takes office.

 

[Aridas]

That might be an ex post facto law and therefore unenforceable for the events of Jan. 6, 2021.



We did sort of go through this without resolution. The situation in which a person acts in an office that he does not lawfully hold is different than one in which a person is removed from office to which he had been legitimately elected or appointed. However, I tend to agree that there is no way Congress can fix this by passing a law after Trump takes office.

To add a little, as a small reminder, even if Trump were to be somehow removed after winning the election, his VP pick would likely become President, not a Democrat. Given the likely field of picks, further shenanigans would be likely to occur to help Trump avoid accountability in that case. Not exactly a decisive win for justice, even if Congress could fix things by passing a law.

 

[theprestige]

To add a little, as a small reminder, even if Trump were to be somehow removed after winning the election, his VP pick would likely become President, not a Democrat. Given the likely field of picks, further shenanigans would be likely to occur to help Trump avoid accountability in that case. Not exactly a decisive win for justice, even if Congress could fix things by passing a law.

There's not going to be a law. Can you imagine? Somehow, improbably, the Democrats in Congress railroad a bill through to the president, and Biden signs a law disqualifying his opponent in a presidential election. In the election year, no less. For a demographic supposedly terrified by the prospect of right wing violence, there seems to be an unhinged amount of fantasizing about triggering exactly that violence.

 

[Aridas]

There's not going to be a law. Can you imagine? Somehow, improbably, the Democrats in Congress railroad a bill through to the president, and Biden signs a law disqualifying his opponent in a presidential election. In the election year, no less.

It is quite unlikely, yes. Rather than in an election year, though, the more plausible long shot scenario is that if Democrats won the House and Senate in the election and somehow managed to pass a bill dealing with that between when the Congress was seated and before Trump was sworn in and Biden was able to sign it, that would be something to grasp onto to prevent Trump, specifically, from taking office. Trump's VP pick would almost certainly not be disqualified, though, depending on specifics, and Biden would not be remaining President, regardless. The SC would likely not allow Trump, specifically, to be removed even then, of course, but at least we would have a law addressing such for future elections. Provided that we would have real elections in the future, at least.

For a demographic supposedly terrified by the prospect of right wing violence, there seems to be an unhinged amount of fantasizing about triggering exactly that violence.

Eh. This quite sounds like a distinct misrepresentation of what's actually being pointed out on that topic and who is actually more terrified of right wing violence (it wasn't the Democrats that claimed that they didn't vote to confirm Biden because they were terrified by the death threats that they received). Also, the cause for right wing violence would be rather weak, to say the least. They still get their person in power, after all.

 

[johnny karate]

There's not going to be a law. Can you imagine? Somehow, improbably, the Democrats in Congress railroad a bill through to the president, and Biden signs a law disqualifying his opponent in a presidential election. In the election year, no less. For a demographic supposedly terrified by the prospect of right wing violence, there seems to be an unhinged amount of fantasizing about triggering exactly that violence.

Then again, right wing violence is already triggered by things that only exist in their imaginations. The left might as well get something out of it since it’s going to happen anyway.

 

[TellyKNeasuss]

There's a difference between a process requirement and a qualification requirement. States can impose the former. The latter are determined by the Constitution.

A state can unilaterally ban someone from the presidential election if they don't follow arbitrary state requirements but cannot ban them from the presidential election if it would violate the constitution for them to serve as president? I do not see how banning someone because of a "process requirement" imposes any less harm on voters in other states than banning someone because of a "qualification requirement".

 

[Trausti]

A state can unilaterally ban someone from the presidential election if they don't follow arbitrary state requirements but cannot ban them from the presidential election if it would violate the constitution for them to serve as president? I do not see how banning someone because of a "process requirement" imposes any less harm on voters in other states than banning someone because of a "qualification requirement".

If you don't file your papers on time you're not really banned. You just missed the deadline.