Is Donald Trump disqualified? Only Congress can decide!

[Concerned American]

I disagree. The disqualification for insurrection is NOT a criminal offense or criminal penalty....

Disagree all you want. You will still be wrong.

18 U.S. Code § 2383 - Rebellion or insurrection

www.law.cornell.edu

 

[Care4all]

Disagree all you want. You will still be wrong.

18 U.S. Code § 2383 - Rebellion or insurrection

www.law.cornell.edu

It fits the definition of 1/6 to a tee.

 

[bigrebnc1775]

The Disqualification Clause of the 14th Amendment (section 3) states that anyone who previously took an oath to support the constitution of the United States and then committed insurrection "against the same" is barred from serving in pretty much any kind of high office in either the federal or state governments. Section 5 further states that Congress has the power to enforce the provisions of the 14th amendment.

And indeed Congress has utilized that power with multiple laws. The Enforcement Act of 1870 was passed under the section 5 power of the 14th amendment, and though it's since been amended, this part is still in force today:



All things considered, this is a rather weak means of enforcement, as it merely restates the constitution. Congress could, for example, legislate that no person who has committed insurrection or rebellion may appear on any ballot for office, and that no vote for such person shall be counted, to include the votes of electors for President and Vice President, so on and so force. But they have chosen not to do so, for better or worse.

This, therefore, leaves very little available to be done at the federal level during the preparations for an election. At the state level some may be tempted to believe that much more can be done. But this is, at best, a foolish endeavor into partisanship. It would amount to proverbial ballot gerrymandering.

States are not the proper venue to fight federal battles. The constitution does not generally permit or tolerate states attempting to wield matters of federal power. We see that in the recent dust up over Texas attempting to set its own immigration policies. Going back a few decades the Supreme Court made it clear in U.S. Term Limits, Inc. v. Thornton that states have no power to legislate term limits for their own members of Congress, or otherwise enact qualifications more restrictive than what the US Constitution sets.

The Court's reasoning is fairly simple: The federal government did not exist prior to the ratification of the constitution, any power the states might possess in regards to its own members of Congress stems from the constitution itself, but the constitution does not grant states the power to enact term limits for Congressional office, therefore the states cannot possibly have reserved a previously nonexistent power through the 10th amendment and since the constitution did not grant them the new power to enact term limits for service in Congress no such power exists.

Also of note is that the constitution explicitly states that each house of Congress will be the judge of its own members' qualifications. Clearly, the constitution envisions only the federal government can rightly determine any question over a person's constitutional qualifications to hold a federal office. This fact is further reflected in the constitution mechanics for the Electoral College, and its contingencies for vacancies.

The constitution grants the power to choose electors to the states, by any means they wish, except that anyone holding a public federal office is excluded (once again notice the way the constitution draws lines between federal officials and state officials co-mingling their respective duties). While the states certainly can create their own legislation that might deprive people from appearing on the ballot for allegedly committing whatever that state thinks constitutes insurrection against the US for purposes of the 14th amendment. But the state's action would have absolutely no real bearing on the person's eligibility under the constitution because states have no power to set or test qualifications for federal offices.

Instead, the constitution positively anticipates the possibility that a person could win a Presidential election even though they might not be constitutionally qualified. The 20th amendment demonstrates this, as it prescribed contingencies for that very possibility.



Furthermore, while state laws may try to force electors to be faithful, that is an entirely state matter. The constitution has no conception of this within its own understanding of how the mechanisms of the federal government are designed. Instead, the constitution only knows that, as described in the 12th amendment, each elector casts separate ballots for President and Vice President. A key detail that is demanded by the constitution is the prohibition on electors against voting for two people from their own state. The constitution includes an explicit prohibition on who electors can vote for. This is important because we cannot infer additional prohibitions that aren't also explicitly stated. While the constitution states that no person not a natural born citizen, or under the age of 35, can serve as President, the constitution does not anywhere state that electors are prohibited from voting a person unless they have first verified the person is constitutionally qualified.

In conclusion, Congress has the power under the 14th amendment to enact robust measures that would affirmatively prevent and bar insurrectionists like Donald Trump from even being a candidate for public office. However, they have chosen not to do so, for better or worse. As a result, the only mechanisms available are the largely toothless Section 2383 statute, and the mechanisms under the constitution. The constitution clearly envisions the possibility for a person to become President elect even though they do not meet the constitutional qualifications. And those mechanisms are what will have to be followed.

It's to late for Congress to push it now

 

[bigrebnc1775]

It fits the definition of 1/6 to a tee.

No according to Congress it doesn't

 

[bigrebnc1775]

Nope. Congress already passed a criminal statute about insurrection. So, that part is done.

What would be required — now — to invoke the 14th to disqualify Trump would be a criminal prosecution under that criminal statute leading to a conviction of our former President.

This is silliness. Ain’t gonna happen.

It's silly because a president can't insurrect his on government

 

[Concerned American]

It fits the definition of 1/6 to a tee.

In your mind alone. That is why NO ONE has been charged or convicted under this law and there has been NO official recognition that an insurrection EVER occurred on Jan 6. This even during the two years that the democrats controlled congress. If there had ever been an insurrection, Piglosi and her henchmen would have been making it part of the official record. They just said the word knowing their constituency would parrot any nonsense they spoke. THERE WAS NO INSURRECTION. An unorganized riot is not an INSURRECTION.

 

[Stormy Daniels]

I disagree. You leave out the FULL section, read the last line.

No person shall be a Senator or Representative in Congress, or elector
of President and Vice President, or hold any office, civil or military,
under the United States, or under any State, who, having previously
taken an oath, as a member of Congress, or as an officer of the United
States, or as a member of any State legislature, or as an executive or
judicial officer of any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress
may by a vote of two-thirds of each House, remove such disability.

This last line tells us Congress's involvement in Section 3,

They by 2/3s vote, can remove the candidates disability of being disqualified.

If Congress were the decision makers in the first place, then there would be no last line in sec. 3 giving them the power to disable the the removal decision.


From the ruling

¶89 The only mention of congressional power in Section Three is that “Congress
may by a vote of two-thirds of each House, remove” the disqualification of a
former officer who had “engaged in insurrection.” U.S. Const. amend. XIV, § 3.
Section Three does not determine who decides whether the disqualification has
attached in the first place.

But what you are missing is the 20th amendment. It demonstrates that the constitution envisions that a person can become President elect AND THEN fail to quality.

 

[Stormy Daniels]

However, it does not say that Congress has that power EXCLUSIVELY.

What the hell is that even supposed to mean?

 

[Concerned American]

What the hell is that even supposed to mean?

C'mon its a personal admission of his own stupidity.

 

[bigrebnc1775]

A. 14 S. 5 does say that "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

However, it does not say that Congress has that power EXCLUSIVELY.

In fact, it would be absolutely silly to one hand expect Congress to pass legislation to bar someone from holding office again, but then:

"Congress may by a vote of two-thirds of each House, remove such disability."

If Congress had the EXCLUSIVE power to bar someone from office by a simple majority, they could reverse it by a simple majority. Expecting any possibility of them reversing it by a two-thirds majority in both houses after imposing it by a simple majority is nonsense.

Besides, A. 14 S. 3 has been enforced by the courts many times without Congressional action.

Congress is the sole authority on the 14th amendment
You do realize why Congress created the 14th?
Passed by the Senate on June 8, 1866, and ratified two years later, on July 9, 1868, the Fourteenth Amendment granted citizenship to all persons "born or naturalized in the United States," including formerly enslaved people, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states. The amendment authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. It banned those who “engaged in insurrection” against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. The amendment prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their enslaved people. Finally, it granted Congress the power to enforce this amendment, a provision that led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation.

U.S. Senate: Landmark Legislation: The Fourteenth Amendment

Landmark Legislation: 14th Amendment

www.senate.gov

 

[Concerned American]

Congress is the sole authority on the 14th amendment
You do realize why Congress created the 14th?
Passed by the Senate on June 8, 1866, and ratified two years later, on July 9, 1868, the Fourteenth Amendment granted citizenship to all persons "born or naturalized in the United States," including formerly enslaved people, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states. The amendment authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. It banned those who “engaged in insurrection” against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. The amendment prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their enslaved people. Finally, it granted Congress the power to enforce this amendment, a provision that led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation.

U.S. Senate: Landmark Legislation: The Fourteenth Amendment

Landmark Legislation: 14th Amendment

www.senate.gov

Maybe they should reduce the representation of CO and ME.

 

[Care4all]

But what you are missing is the 20th amendment. It demonstrates that the constitution envisions that a person can become President elect AND THEN fail to quality.

Really? At the State level, at least in my state, election law requires the Secretary of State to check to make certain candidates on any ballot, qualify.

Seems wrong and very unfair to the candidates that do qualify, have a candidate who did not qualify to run on the ballot....like someone running for president who was born in India and naturalized here, and/or someone 20, running for president.... don't ya think?

 

[Care4all]

Congress is the sole authority on the 14th amendment
You do realize why Congress created the 14th?
Passed by the Senate on June 8, 1866, and ratified two years later, on July 9, 1868, the Fourteenth Amendment granted citizenship to all persons "born or naturalized in the United States," including formerly enslaved people, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states. The amendment authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. It banned those who “engaged in insurrection” against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. The amendment prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their enslaved people. Finally, it granted Congress the power to enforce this amendment, a provision that led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation.

U.S. Senate: Landmark Legislation: The Fourteenth Amendment

Landmark Legislation: 14th Amendment

www.senate.gov

Several sections of the 14th are self evident, and Congress made no further legislation to enforce them. The Colorado Supreme court addressed this, in their ruling.

 

[Stormy Daniels]

Really? At the State level, at least in my state, election law requires the Secretary of State to check to make certain candidates on any ballot, qualify.

Ballot access and constitutional qualification are, at best, two separate things.

 

[Concerned American]

Really? At the State level, at least in my state, election law requires the Secretary of State to check to make certain candidates on any ballot, qualify.

Seems wrong and very unfair to the candidates that do qualify, have a candidate who did not qualify to run on the ballot....like someone running for president who was born in India and naturalized here, and/or someone 20, running for president.... don't ya think?

Or a dead person in PA.

 

[BackAgain]

Several sections of the 14th are self evident, and Congress made no further legislation to enforce them. The Colorado Supreme court addressed this, in their ruling.

Nah. The Colorado Supreme Court made a massive bunch of easily avoidable mistakes.

The real Supreme Court will set them straight.

 

[Care4all]

Ballot access and constitutional qualification are, at best, two separate things.

Have you read the Colorado supreme ruling, where they addressed most all of this....? It's several hundred pages, but definitely worth reading!

Nah. The Colorado Supreme Court made a massive bunch of easily avoidable mistakes.

The real Supreme Court will set them straight.

I doubt the U.S supreme court will do any such thing....

The U.S. SUPREME court will have to gingerly make their decision without interfering directly with the State's SC decision.

 

[Care4all]

Or a dead person in PA.

Huh?

 

[Care4all]

No according to Congress it doesn't

What Congress? Got a link where Congress made some sort of decision or comment on this?

 

[Concerned American]

Huh?

PA elected a dead man as their congressman in 2022.

Pa. State Rep Reelected Despite Being Dead: Why Was He on the Ballot?

Pennsylvania Rep. Tony DeLuca was re-elected in the midterm elections even though he died a month ago. Why was he on the ballot and how did he win?

www.nbcphiladelphia.com