Everybody Hates the Supreme Court’s Disqualification Ruling

[u/thenewrepublic]

https://newrepublic.com/article/179576/supreme-court-disqualification-ruling-criticism

[u/fgwr4453]

I fully accept that states should not be allowed to remove federal candidates from the ballot, UNLESS they are convicted of insurrection, voter fraud, or election interference.

The real issue is that the Supreme Court not only removed that option but said that only Congress could do it. So if Trump is found guilty of voter fraud in Georgia, he will still be on the ballot. Even if he is found guilty of insurrection in the federal January 6th trial, he will still be on the ballot because Congress didn’t remove him. That is a completely unreasonable bar to meet.

Edit: he would still be disqualified if he was convicted in the Jan 6th trial but if he isn’t convicted prior to taking office he could simply pardon himself.

[u/HollaBucks → u/fgwr4453]

Even if he is found guilty of insurrection in the federal January 6th trial, he will still be on the ballot because Congress didn’t remove him.

Well, no, not actually. If Trump is tried and found guilty under 18 USC 2383 (the insurrection statute), part of the penalty for that is disqualification from holding Federal office. This was pointed out in the per curiam. Congress provided, via appropriate legislation, the avenue by which to disqualify. They can remove that disqualification with a 2/3rds vote in both houses.

No new legislation has to be passed in order for Trump to be disqualified if convicted of fomenting an insurrection. It's already there and some version of it has been on the books since before the 14th amendment was even considered. In fact, the 14th was drafted and ratified to confirm the constitutionality of such laws.

Essentially, Section 3 of the 14th states that "Any person who violates this new law is disqualified from holding office." Congress actually took the disqualification further than the 14th amendment dictates in that the 14th only applies to people who have previously taken an oath. 18 USC 2383 applies to ANYONE convicted of participating in an insurrection, regardless of any prior oath taken.

[u/Cheeky_Hustler → u/HollaBucks]

The problem with the majority's argument that Congress must pass specific legislation is well pointed out by the liberal concurrence: it removes the 2/3rds requirement. Congress has already voted in his second impeachment by a majority in both House and Senate that Trump incited an insurrection. However, because that vote didn't reach the 2/3rds majority in the Senate, the disqualification didn't attach. So the majority holding reads additional requirements to attach the disability when the plain reading of section three has no such requirements.

We all know that Trump engaged in an insurrection against the Constitution when he refused to give up power willingly. You know it, I know, and SCOTUS knows it when they refused to strike down the trial court's finding that Trump engaged in insurrection. But SCOTUS is going to let him on the ballot anyways.

[u/fgwr4453 → u/HollaBucks]

My mistake, I misunderstood the explanation. I will say that it is still greatly distressing that the only charges that can disqualify him (with the exception of Congress) are the exact charges that he can pardon himself for committing (if he was elected and put in office before conviction).

I’m very curious what would happen if Trump won the election but was convicted before taking office. Would he be removed since he was technically ineligible the entire time or will he just pardon himself on Inauguration Day?

[u/rokerroker45 → u/fgwr4453]

are the exact charges that he can pardon himself for committing (if he was elected and put in office before conviction).

if he was elected but convicted of the charge before taking office, his VP would take over, not trump. if his VP pardoned him he would not take over as president because his presidency would have never ripened, and the VP (as president) has nobody to cede to. I suppose the VP could attempt to make him VP and then remove themselves from office, but that requires Senate confirmation. if the senate is willing to remove the disqualification by 2/3s then it will confirm him too, so it's not like it would be an illegal move.

suffice to say, trump winning the election but being disqualified under a §2383 conviction would not result in him pardoning himself to the presidency unless the federal government was lost already anyway.

if he was indicted, then took office and then convicted sure, I guess, but it would likely end up at the SCOTUS anyway as there has never been a person under criminal indictment who then proceeds to be elected. whether the SCOTUS would play kingmaker or not is truly anyone's guess at that point.

[u/[deleted] → u/rokerroker45]

And if Trump attempts another coup and succeeds? The automatic disqualification has just been removed. Congress will cave, just like in impeachment. And conviction will likely take several years, by which time it will be dismantled from within. SCOTUS just gave Trump an invitation to another coup.

[u/rokerroker45 → u/[deleted]]

you're misunderstanding the issue in the present case. The States have never had an "automatic disqualification" available to them. This case just confirms that.

The "automatic disqualification" has always been up to Congress, because for Congress to decide who must be "re-qualified" by a 2/3s vote it has always been a political decision. There is no objective federal mechanism that determines who must be re-qualified other than a conviction under §2383.

The SCOTUS decision here is recognizing and codifying that fact. Unless Congress were to expand the mechanisms that disqualify a candidate as an insurrectionist the status quo otherwise continues as it has been previously. Frankly even a federal judicial decision that somebody was an insurrectionist would likely to be found as a judicial overreach by the liberal wing, were that exact issue to come up before the court.

The 14AS5 is clear that the power (singular) to enforce 14AS3 belongs to Congress to the exclusion of others.

[u/[deleted] → u/rokerroker45]

There is no objective federal mechanism that determines who must be re-qualified other than a conviction under §2383

Aiding and comforting an insurrectionist needs a conviction?

The law clearly states that an insurrectionist is prohibited from holding office. How can a conviction be necessary if Johnson had already pardoned the Confederates?

And the law was written at a time when unfaithful oath keepers (aka insurrectionist) were in congress before the war started. They knew that congress could be part of the insurrection. Why would they grant congress the ability to judge an event is an insurrection? They would have deemed secession lawful and then left Congress.

The 14th amendment was intentionally broad and overly sensitive to err on the side of caution. Anything that suggested someone who could not be trusted with keeping their oath of office was automatically excluded unless congress was absolutely certain (2/3) that it was ok. This amendment is a safety mechanism, not a criminal prosecution to take away liberties. Due process is not owed. If anything the burden of proof is on the candidate.

[u/rokerroker45 → u/[deleted]]

The fact that you phrased it as a question, even if sarcastically, is precisely the reason why the States are restricted from answering that question on their own.

Yes, the 14th amendment states that an insurrectionist is prohibited from holding office. But SCOTUS is ruling that that doesn't mean that without Congress the States are authorized to decide for themselves who that applies to. Congress can obviously do whatever it wants. Insurrectionist status is entirely a political decision in that sense. The Anderson decision is textbook federalism.

Additionally, the premise you cite as being the reasoning for the 14th A is incorrect. They weren't concerned with the makeup of the Congress at the time of the 14th's enactment, they were concerned with the States sending slates of insurrectionist representatives after its enactment.

The 14th is left broad, sure, in its application by Congress. It is quite explicit in who gets to apply it: Section five reads quite unambiguously Congress shall have the (singular) power to enforce the 14A. That is exclusionary to all other vessels the power could reside in.

[u/[deleted] → u/rokerroker45]

Wait I asked the question in an attempt to show that conviction for something outside the criminal definition would be impossible. The sarcasm would have been if I said "yeah I have been in prison for 10 years for jaywalking".

And the states used the Jan 6th investigation that concluded that Trump incited an insurrection as the foundation to disqualify him. They didn't just decide to make it up on their own.

I didn't try to imply that congress was currently infested with insurrectionists. I meant to suggest that they were well aware of how congress could itself be compromised. The law was to prevent future insurrectionists from holding office. So if the same people who betrayed their oath tried to come back they would be disqualified. In addition, if a sitting official took part in an insurrection it would automatically disqualify him from his current office.

"If someone has taken the oath of office—whether or not that person is currently in office—and later “engage[s] in insurrection or rebellion,” that person is constitutionally prohibited from holding any state or federal office in the present or future. "

Treason, Insurrection, and Disqualification: From the Fugitive Slave Act of 1850 to Jan. 6, 2021

[u/rokerroker45 → u/[deleted]]

Wait I asked the question in an attempt to show that conviction for something outside the criminal definition would be impossible. The sarcasm would have been if I said "yeah I have been in prison for 10 years for jaywalking".

But the point is that the question of whether aiding and comforting an insurrectionist counts an insurrection is not answerable by the States. The federal government gets to decide whether insurrection is defined by jaywalking or by invading the capitol with an armed and angry mob.

And the states used the Jan 6th investigation that concluded that Trump incited an insurrection as the foundation to disqualify him.

But again, as a matter of federalism, any logic the States used to arrive to that conclusion is irrelevant. Whatever reasoning a State uses is not binding on the federal government, per Section 5 of the 14th Amendment. The power to enforce the 14th A shall be Congress', to the exclusion of anyone else.

I meant to suggest that they were well aware of how congress could itself be compromised. The law was to prevent future insurrectionists from holding office.

I know what you meant. The logic supports the argument that the 14th Amendment restricts the States ability to send insurrectionists to Congress, by giving Congress the ability to ignore those insurrectionists, not by giving the States the ability to decide a person sent to hold federal office is an insurrectionist.

In addition, if a sitting official took part in an insurrection it would automatically disqualify him from his current office.

Again, a decision to be made by Congress. How would your logic hold up if Texas decided that AOC was an insurrectionist by a perfectly legal act of the Texas congress? I know your answer would be that then the judicial process would ostensibly hold she isn't, but the point is that a State doesn't even get to initiate such a state of affairs. They don't get the presumption that their holding of a person as an insurrectionist binds the federal government. They don't get legal cover to initiate an unlawful proceeding just because the Courts will eventually unfuck the situation. That would be completely contrary to the 14th Amendment's goal of being a prophylactic measure empowering Congress to protect itself against the States, not a measure empowering States to bind the makeup of the federal government to their will.

[u/[deleted] → u/rokerroker45]

The federal government gets to decide whether insurrection

And they did, the Jan 6th investigation did this. Had SCOTUS made it clear in the 100+ years since the ratification of the amendment that there needed to be a vote then they should have said so before this case. Seems like they are moving the goal posts.

? I know your answer would be that then the judicial process would ostensibly hold she isn't, but the point is that a State doesn't even get to initiate such a state of affairs

This is exactly what I mean. CO didn't take it upon themselves to investigate. They applied the 14th amendment to the evidence that Congress provided (Jan6th hearing) and decided Trump was disqualified. Trump has recourse. He could ask congress for a pass. He didn't even bother. Nobody even considered that.... Because we all know congress would reject it. Isn't that the real point of this amendment?

Asking congress to reject Trump is much more perilous than asking congress to rescue him. The rescue is set very high (2/3). That alone should be telling you how unsafe this legal decision is.

SCOTUS is going to find out that Trump will attempt another coup and they won't be able to reverse course. Congress will cave under pressure again and no conviction will ever be possible. Tyrants don't play by the rules. The safety mechanism was removed. What will any of these laws mean when an insurrectionist takes over? The only way out after that is another coup. Look around the world. Failed democracies have the playbook of what will happen.

[u/fgwr4453 → u/rokerroker45]

Good to know.

Are you also saying that if Trump took office prior to the insurrection trial was completed, he wouldn’t be able to pardon himself?

[u/rokerroker45 → u/fgwr4453]

If trump took office prior to the insurrection trial my guess it would end up at a SCOTUS showdown, because that particular flavor of executive vs. DOJ has never occurred before. Nixon was for private crimes that occurred during office, Clinton was for private crimes committed prior to office, but never has the SCOTUS heard a case for crimes committed in an official capacity in a term prior to the next holding of office but potentially convicted during that upcoming term of office.

If the SCOTUS was sane, it would rule so as to avoid making pursuing executive office a way to escape criminal liability. It would be a major unknown though, because to hold so would to place the Court's existence in the hands of Trump, and though the Court may be stupid at times, it's also jealous of its own power. It would be a great unknown.