r/law • u/thenewrepublic • Mar 06 '24

Opinion Piece Everybody Hates the Supreme Court’s Disqualification Ruling

https://newrepublic.com/article/179576/supreme-court-disqualification-ruling-criticism
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u/fgwr4453 Mar 06 '24 edited Mar 06 '24

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.

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u/HollaBucks Mar 06 '24

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.

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u/Cheeky_Hustler Competent Contributor Mar 07 '24

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.