A Michigan judge on Tuesday ruled that Donald Trump can stay on the ballot at least through the 2024 presidential primaries in the state, deciding a batch of three separate cases addressing the Constitution’s Disqualification Clause.
Redford found that Congress would need to act in order to bar Trump from holding office
Congress gives waivers to an individual to allow him/her to hold office, not the other way around. There is nothing that I read in that amendment that say Congress must act to keep an insurrectionist off the ballot or prevent the person from holding office.
Correct me if I am wrong.
[Fourteenth Amendment to the United States Constitution - Wikipedia] 14th Amendment
“But Redford denied a request for Trump to apply that finding to the 2024 general election, leaving the prospect for another round of litigation on this question to restart after the GOP formally nominates Trump next year.”
Well, by the time The Rs actually nominate Trump there won’t be a whole lot of time left to adjudicate the question. Their convention is relatively early, scheduled to be over by July 18, but that still leaves only three and a half months before the election for the matter to be resolved in the courts, the parties to react, and then for the ballots to be set. The Rs, obviously, would need to choose someone else to sub in for Trump in Michigan if he were disqualified, but, since this will be a national election, if they want to win that election, they might also need to sub in this non-disqualified person in other states as well. Of course, if the legal question isn’t resolved yet, they won’t know who the disqualification applies to until the courts are through with the question… If Trump is an insurrectionist, then is Mike Wilson, for example, also disqualified because his plan to reject Biden EV tallies was part of the plot? At least some of these states are bound to have schedules that require the ballot to be set before the courts and the Rs could finish the adjustments they would need to make.
The point is, unless the Michigan courts in late July 2024 are willing to render completely unworkable the election as the unwritten constitution currently requires it to be conducted, they will not revisit the issue at that time.
The idea that this is a political question is actually correct anyway. Congress has already acted to define one way to declare a person disqualified under 14.3, by passing a statute making insurrection and rebellion a crime that carries as one of its penalties a bar from office. This does not exclude other means of determining insurrection status that might be established, but I can’t see any body other than Congress that could legitimately establish such an alternative process, a commission, for example. SCOTUS could probably get away with accepting jurisdiction over the question, and then deciding on some such alternate means of designating insurrectionists. I don’t think that this outcome would be either correct or desirable, not mostly because I imagine they would figure out some way to favor Trump (they probably hate and fear him more than most of us), but because I think it’s a horrible idea to let them assert unreviewable discretion over a question that would give them control over presidential succession
As I understand your point, you are referring to the provision at the end of 14.3 that Congress can, by a 2/3 vote, remove the disqualification. Well, so far no one has yet applied the disqualification, so the current controversy is not over removing the disqualification, but over applying it. This court has refused to do that, apply the disqualification.
This is correct.
Congress has two touch points here.
This whole discussion is silly as Trump has not been charged for insurrection
We have a malignancy. In my experience (cancer twice, so far) the best solution was surgery to remove the tumor. Then they were discarded. I would hope trump would be removed from ballots in every state.
It could happen by virtue of a felony conviction, just shy of the convention and Trump is under arrest, cardiac arrest
Well, of course he should be disqualified. He mounted an insurrection against the Constitution. And all the leaders of the Confederacy, including the much vaunted Robert E Lee, should have been tried and convicted of treason and imprisoned, or as the era dictated, hanged as traitors. And that didn’t happen either. And look where that’s got us.
Take a look at article 3, Section 3 of the Constitution. It defines what treason is specifically
“Treason against the United States, shallconsist only in levying war against them, or, in adhering to their enemies, giving them aid and vomfort. No person shall be convicted of treason unless on testimony of two witnesses to the same overt act, or on confession in open court.”
… … …
J6 can be construed, I think, in “levying war” by trump.
"This whole discussion is silly as Trump has not been charged for insurrection.’
Actually, the Sec.3, 14th Amendment text reads, “rebellion against the constitution,” and doesn’t add a condition of being charged or convicted. Refusing to accept losing the vote is a rebellion against the constitution. This is the argument of Laurence Tribe and Justice Luttig, who lamented that these first lawsuits are incorrectly focused on the Capitol Building insurrection.
As good as it would be to keep Trump off the ballot and away from the presidency, that’s not an excuse to do it this way. Sure, he did all the bad stuff, but, like a mob boss, he kept the connection vague enough that it’s hard to pin down that he actually lead an insurrection. He hasn’t been charged with that either. We have elected felons, that’s not a limit on winning an election, so it shouldn’t be on running either. Plus, a large part of the nation will never believe he did anything bad enough to get him tossed, and a smaller part will see the vagueness and think it’s not enough (even if they agree it’s really bad stuff). Plus, some people think elections should settle things, and trying to block people’s choices is bad…see the Walker recall in WI for an example.
There is also the fact that Haley is a far better candidate, and in a debate with Biden she will come off as far more together…even if Biden has a great night the press will crucify him for his one lapse or mistake, and ignore that Haley will just be another Republican pushing to outlaw abortion and rule by fiat. I’d much rather have Trump up there being his usual self, with the loads of baggage that all the court trials will open up, because Biden can handle that, he’s already shown he can win that election, and Trump will likely burn on top of his open push to make us WASP ruled again.
Yes, people eager to use this method forget it is a double edged sword.
Baring some conviction, using general fact sets opens up pandora’s box, a weapon that can and will be used against Democrats.
It’s probably true given the inflation hangover issues, that Biden is better served going against Trump who will likely be massively motivating to Democrats (in opposition) – so long as some centrist play for Electoral Votes in the middle states is made, a nail biter but winnable with big anti-Trump mobilisation.
and for God’s sake if Dems don’t mobilise against Trump… we deserve the result.
So the Section 3 of the 14th Amendment is dead-letter law.
Got it.
That’s correct, but it doesn’t make the issue justiciable. Congress that the authority under 14.5 to enact legislation to enforce the ban on holding office, but it has not done so except through the insurrection statute. So the better argument is that Congress has otherwise reserved its enforcement authority to itself – a classically non-justiciable political question.
Not really. It’s more that it’s not very well defined…is what Trump did enough? There’s no standard to say yes or no, or really a way to determine that unless he’s actually convicted of inciting a rebellion. That’s the problem, and without a standard people can compare to it turns it into a big mess where politics can determine what people want to believe. As @txlawyer noted, Congress could make up a checklist to determine how you cross the line and get removed from politics, but they left it a confusing hash instead.
Really, the very best answer is for the people to remove the Republican threat to the future of the nation through elections and political activity. Republicans are working very, very hard to make sure the people don’t have a voice anymore, they know they will lose out in the end if the people’s voice is clearly heard. So, we need to do everything we can to make sure that people vote and engage to remove the threat of Trump and his minions, and force the Republican party to back away from their authoritarian ways if they want to hold power.
Yep, the trump cult needs to get their electoral ass handed to them.
Is 1828 too late for originalists?
I possess a copy of Noah Webster’s 1828 dictionary of American English, one of the few dictionaries available when the 14th Amendment [adopted in 1868] was written.
The lawyers on both sides of the argument over whether the 14th Amendment bars former President Trump from appearing on the ballot appear to be making up what they want “insurrection” to mean, whereas this dictionary clearly, accurately and authentically states its meaning at the time.
Yeah, if you’re famous they just let you do it.
A dictionary doesn’t make an issue justiciable. The only reason anyone can sue for violation of the Due Process guaranteed by the 14th Amendment is that Congress passed a statute providing that people could sue for violations of Due Process. They have not passed a statute providing that candidates can get sued to get kicked off ballots if they summoned a mob in order to fuck up Congress’s shit.
No, ladyfair, you are absolutely correct. But this decision by the court was rendered by Judge James Robert Redford, a Republican jurist appointed by a Rethuglican governor. Who’d a thunk that? Makes sense doesn’t it? . . . Oh yeah.
on X: “Quick history lesson: Those who wrote the Disqualification Clause into the 14th Amendment all deemed the 7 states that seceded before war erupted in 1861 at Fort Sumter to have engaged in “rebellion against the Constitution of the United States” so Trump’s ineligibility (cont’d)” / X (twitter.com)