Patterico's Pontifications

1/3/2024

The 14th Amendment Should Be Enforced

Filed under: General — Patterico @ 1:37 pm



David Lat has a post predicting that the Supreme Court will reverse the Colorado Supreme Court on the 14th Amendment disqualification issue:

First, the Court is likely to keep Trump on the ballot—based on consequentialist concerns, and regardless of the legal merits. Some 74 million Americans voted for Trump in 2020. How will millions of them react to being told they can’t vote for him again?

As Yale law professor Samuel Moyn puts it, “it is not obvious how many would accept a Supreme Court decision that erased Trump’s name from every ballot in the land,” and “rejecting Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.” The backlash against the justices from such a ruling is hard to imagine.

To be sure, the current Court has ignored practical consequences and public blowback before—most famously in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade. But Dobbs involved constitutional principles the conservative legal movement has cared about for decades; the same isn’t true of Anderson, arising from an obscure constitutional provision that many Americans (or even lawyers) hadn’t heard of until now.

Second, I predict the vote won’t be the 6-3, conservative-liberal split that characterizes the Court’s most controversial cases. Chief Justice John Roberts will struggle mightily to cobble together a coalition that includes at least one Democratic appointee—and at least one, Justice Elena Kagan, should be sympathetic to that goal.

Both Chief Justice Roberts and Justice Kagan are institutionalists who care deeply about the reputation of the Court. Both recognize the damage it would suffer if the outcome in this case is perceived as the product of partisan politics.

I think David is quite right that the Supreme Court will not let the ruling stand, even though I think the ruling is correct. But I have a problem with the seemingly cavalier approach that so many (not David, but many) seem to have towards the idea that you can’t enforce this provision even if, properly interpreted, it does disqualify Trump. So I left a comment on David’s Substack and thought I would reproduce it here:

I think you’re right, David, but as a lawyer I can’t help but notice that the default opinion of many (not you, necessarily, but many) seems to be as follows:

Yes, it looks like the 14th Amendment, read properly, disqualifies Trump from being elected president. Legislative history shows members of Congress discussing the fact that it applies to the presidency. Arguments about the difference between the oath taken by the president and by Congressional members and executive officers are plainly silly, as the wording of the Article II oath covers supporting the Constitution. Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to “remove” a disability means the disability is there until removed. Trump engaged in insurrection, as the historical interpretations cover incitement as engagement. And it’s not a political question. But . . .

But it can’t be enforced, obviously, no matter what the law actually says, because that would make people Big Mad. And make the Court look bad. And so it’s important not only Section 3 not be enforced, but that the idea of its enforcement be resoundingly rejected in a manner that appears non-partisan.

(I am not attributing this position to you because you did not really express a view on the merits. But many have.)

I just think that’s a weird position: that yes, the law is clear, but it can’t be enforced because, well, of course it can’t! And yet a lot of smart people on both sides say this. Enough that I think it is fair to call it the default position of smart lawyers.

And so we know that the Court will twist themselves (and the law) into pretzels to do the “adult” thing that preserves their perceived institutional legitimacy and keeps people from being Big Mad and maybe rioting or worse. And if that means pretending the law is something other than it is, well, we all have to be adults!

I dissent. I think the law here is clear and should be applied, and the public reaction and the institutional concerns about the Court’s legitimacy be damned.

I know my view will never win the day. But it should.

I am happy to discuss the nuts and bolts of the interpretation with you, as well as the idea that you just can’t enforce this thing no matter what they law actually says.

166 Responses to “The 14th Amendment Should Be Enforced”

  1. The 14th amendment does not prohibit anyone from running for an office; only from holding it.

    It says nothing about the process of election.

    Sammy Finkelman (1d215a)

  2. If you’re not eligible then you shouldn’t be on the ballot. If you want to still run for office, you can get a write-in campaign going instead.

    Sam G (8d2ed1)

  3. A state can di anything it wants, but it must not pretend to decide a federal question.

    It can, however, empower someone, or some body, to act on an opinion of how the federal question will eventually be decided.

    And it doesn’t matter when it comes to the offices of president nd vice president and the person not allowed on the ballot is a leading candidate/.

    A presidential primary only has the validity that a political party gives it. There can always be a credentials challenge, and a party can choose to use a caucus instead, or a so-called
    “firehouse primary”.

    And for the general election, a state elects electors, not candidates, and how and if a pledge can be enforced depends upon state law.

    Sammy Finkelman (1d215a)

  4. Sam G (8d2ed1) — 1/3/2024 @ 2:05 pm

    If you’re not eligible then you shouldn’t be on the ballot.

    You’re talking general principles not law.

    If you want to still run for office, you can get a write-in campaign going instead.

    A state can decline to tally votes cast for write-ins. And there may not be any delegates to a convention, or Electors in the Electoral College, behind the name.

    Incidentally, the Democratic Party has decided that South Carolina comes first this year (and maybe indefinitely) because that’s Joe Biden favorite state, next to Delaware. It will not use the results of the New Hampshire primary and may even penalize candidates who participate in the NH primary, Joe Biden is not on the ballot in New Hampshire but maybe some people will conduct a write-in campaign just so he is not humiliated by Dean Phillips. Write-ins do count in New Hampshire.

    https://nypost.com/2024/01/03/news/write-in-joe-biden-nh-democrats-stage-unprecedented-primary-effort

    President Biden’s absence from the 2024 New Hampshire Democratic primary ballot has triggered a grassroots write-in campaign to ensure the incumbent doesn’t suffer an unprecedented embarrassment on Jan. 23.

    The largely volunteer group, Granite State Write-In, has less than three weeks and a minuscule budget of $70,000 to get the word out to Democratic voters to add the 81-year-old’s name to their ballots, a source familiar with the effort tells The Post.

    “A write-in campaign like this is unprecedented and it’s very difficult to do,” the person said. “There are definitely challenges. And there’s no question that because [Biden’s] not on the ballot, whatever number he gets at the polls will understate his actual support.”

    Biden failed to register for the New Hampshire ballot after the state refused to comply with the Democratic National Committee’s new calendar, which makes South Carolina the first primary contest on Feb. 3.

    On its Write-In Biden website, the group blames “misguided DNC rules” for the president’s absence from the ballot and says it is “dedicated to protecting our democracy from MAGA extremism and moving our state and our country forward.”

    Sammy Finkelman (1d215a)

  5. The 14th amendment is not self-enforcing because the matter of whether there was an “insurrection” and whether any person was involved is not undisputed. In the case of a person elected to Congress, the House or Senate is the judge of the qualifications of its members.

    In the case of other offices, ultimately it would be the Supreme Court.

    The 20th amendment, I think, makes it clear that a person can be elected but found not qualified. (If it is for lack of votes, then how is he the “president elect?”)

    https://constitution.congress.gov/constitution/amendment-20

    Section 3

    If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

    Sammy Finkelman (1d215a)

  6. Part of getting added to a ballot is stating you’re eligible: we’ve seen such forms/letters in other threads. Going forward, I fully expect states to add a requirement where the applicant must state they are eligible per A14S3.

    Sam G (8d2ed1)

  7. Congress’s failures (plural) to enforce the 14th Amendment pursuant to its enabling clause does not make it self-executing. It only makes it the property of the United States Supreme Court by adverse possession. Its exclusive and jealously guarded property which state courts are not allowed to trespass on, whether it is restricting federal rights or expanding them (see Oregon v. Hass, 420 U.S. 714 (1975).

    Red herring or false premise, it is too casual a hand wave for an attainder imposed by a minor state official performing a ministerial duty.

    nk (bbc2a9)

  8. Thus, Lincoln suspended the writ of habeas corpus because he felt that dissent could be fatal to the country in this time of emergency.

    https://www.enotes.com/topics/secession-civil-war/questions/explain-write-habeas-corpus-why-lincoln-375372

    Analogous?

    norcal (d71a96)

  9. Am I right in assuming that all of this hinges on this part of the 14th here?

    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.

    Clearly no expert but.

    This currently reads like the old saying about pornography by Gloria Leonard. “The difference between pornography and erotica is the lighting”
    A couple judges look at Trump’s actions under the lighting they brought with them and decided it was clear that Trump had engaged in insurrection that carried this penalty. The power to do this clearly lies in Congress but they won’t to it because the can’t do “fair” and don’t intend to, so it should get kicked to being heard by a panel of judges and then appealed.
    Rebellion is clearly tolerated, so we have to be talking about insurrection- whatever that is defined as and by whom and by an ambiguous threshold that was met. I use the word ambiguous because we allow rebellions and call them OK by simply applying synonyms to them and we do the same with insurrections. We’ve seen multiple uprisings against government carried out inside federal institutions over the years- some spawned by elections- and we simply rename them something less – pornography get called erotica, just change the lights a bit, there you go. I’ve paid attention to people claiming the USA was born from rebellion and insurrection, Boston Tea Party features prominently with those people and the lesson there is that history is written by the winner. Proceed accordingly.

    My main objections to the judges finding Trump is an insurrectionist to this extreme that he must be purged from the state ballots would be that this should not be a unilateral finding by a single judge, it should be found by a panel of the highest level, the process should be open, vigorous and adversarial. We have a process for that. We have a process for appealing judgements and punishments. This is an important enough ruling to use those processes to remove the constitutional right to run for office of President by a person who previously was elected to and held that same office. I am a States Rights person, but if CA takes Trump off the ballot without due process he can’t win the popular vote. If a majority group of Electoral college states got together and all excluded Trump, he couldn’t win the Electoral College. Sure he could be written in, but the States would have written him out and I don’t know if the States should have the right to write someone out (denying the candidate a right equal to the others who are written on the ballot) without due process

    This currently reads like the old saying about pornography by Gloria Leonard. “The difference between pornography and erotica is the lighting” A couple judges look at Trump’s actions under the lights they brought with them and decided it was clear that Trump had engaged in insurrection that carried this penalty. The power to do this clearly lies in Congress but they won’t to it because the can’t do “fair” and don’t intend to, so it should get kicked to being heard by a panel of judges and then appealed.

    steveg (ef9b5f)

  10. sorry for the bad edit

    steveg (ef9b5f)

  11. People are focused on the claim of insurrection. This is also in the 14th Amendment:

    Section 1 Rights
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    I don’t think the due process has played out.

    Mattsky (a8dcdb)

  12. The President is “elected” by the electors in December. Unless our black-robed permanent Constitutional Convention is prepared to rule that the Electoral College is a deliberative body thereby opening a whole new can of worms, it should rule that Section Three was never meant to apply to the President by reason of that can of worms.

    (It is not necessary for them to say that the Radical Republicans who drafted it were a bunch of vindictive assholes intent on maintaining a political stranglehold on the South for the next two generations without regard of the consequences past the carving up of the West by their Gilded Age cronies.)

    nk (bbc2a9)

  13. But, hey, at least we got Carnegie Hall! That’s something, isn’t it?

    nk (bbc2a9)

  14. There was a civil trial in Colorado where evidence was presented, both sides got to make their arguments, and then the panel of judges ruled.

    That’s due process.

    SamG (4e6c22)

  15. I said this the first time it came up, but I’m not super comfortable with the idea of excluding someone from the ballot for 14th amendment purposes without some kind of related conviction. I think it makes it too open to abuse.

    Nic (896fdf)

  16. Mattsky (a8dcdb) — 1/3/2024 @ 4:41 pm

    Except that Trump is not being deprived of “life, liberty, or property.” As SamG pointed out, there was a trial in Colorado, and in Maine there was a hearing consistent with Maine’s law.

    Disqualification under Section 3 doesn’t threaten any of these. Loss of eligibility for holding various types of public offices pretty obviously doesn’t threaten anyone’s life or property rights. And it isn’t a threat to liberty, either. No one claims that the Twenty-Second Amendment deprives people of “liberty” merely because they become ineligible for the presidency if they have already served two terms.

    The Supreme Court has held…….that a degree of constitutional due process is required for deprivation of some types government benefits, particularly those that provide essential needs, such as welfare benefits for the poor.

    Eligibility for the presidency isn’t an essential need in the same way. If Trump is no longer eligible for the presidency, he isn’t going to starve or become homeless. And even when it comes to deprivation of vital welfare benefits for the poor, the Supreme Court has held that due process requires only an administrative hearing, not a “judicial or quasi-judicial trial.” The five-day trial held by the district court in the Colorado case in which both sides presented extensive evidence and expert testimony easily meets any plausible due process requirements for a case like this, even if we assume that the Due Process Clause applies……..

    Source

    Rip Murdock (d2a2a8)

  17. Ilya Somin giving us a taste of Marxist pilpul again? It did not get any better with age.

    nk (bbc2a9)

  18. A. Section 3 lists every potential office EXCEPT POTUS/VPOTUS. If we believe words mean things, then leaving that office off the list has to mean something.

    B. Section 3 doesn’t invalidate the 6th Amendment. Trump can’t he declared guilty of any crime without due process. Otherwise, any state could declare anyone they want guilty without recourse. Can states invalidate the Biden/Harris ticket because Kamala gave aid and comfort to the Floyd rioters? They can if They can invalidate Trump on the same grounds.

    C. Everyone is ignoring Section 5, which gives Congress sole enforcement power. Neither SCOCO nor MESoS are Congress.

    SaveFarris (0fb0df)

  19. If I to lean toward any side, it’s Nic’s, because I think there’s a slippery slope to the language of “engaged in insurrection” without some kind of threshold established, and the USSC could provide the criteria for that threshold, whether it be an indictment or conviction or something else.

    I keep thinking that if Trump’s role in the insurrection is vaguely decided as “engaged”, then it could open a can or worms in future elections, say a Democrat who was Antifa for a week when the group threw bricks at a Portland federal building. Would that guy be disqualified?

    Paul Montagu (d52d7d)

  20. Except that Trump is not being deprived of “life, liberty, or property.”

    Being taken off the ballot is depriving Trump of liberty.

    Mattsky (80e2ab)

  21. There was a civil trial in Colorado where evidence was presented, both sides got to make their arguments, and then the panel of judges ruled.

    That’s due process.

    A state court has found Trump guilty of a federal crime in a civil trial. The feds haven’t charged him. The allegations took place out side of the court’s jurisdiction. That wasn’t due process it was a kangaroo court.

    The DOJ has told us that only the federal government can enforce immigration laws. Both are federal laws.

    Mattsky (80e2ab)

  22. Imagine if some red states had taken Hillary off their ballot for the unauthorized removal and retention of classified documents or materials.

    For the record I’m not a Trump MAGA guy. Out of this crop of candidates I prefer Ron DeSantis.

    Mattsky (80e2ab)

  23. The amendment says nothing about requiring conviction. From a base eligibility perspective, it’s a civil matter.

    SamG (4e6c22)

  24. You want to hold a person accountable for committing a federal crime you should have to convict them in a federal court.

    The amendment says nothing about requiring conviction. I think it is implied.

    Mattsky (80e2ab)

  25. @SamG From my viewpoint as a regular American who is not going to vote for Trump under any circumstances, I still don’t think it flies. I’m not going to fool myself by pretending that it could technically pass muster if I just squint hard enough and looks slightly up and to the side just because Trump is terrible.

    Nic (896fdf)

  26. “Trump engaged in insurrection, as the historical interpretations cover incitement as engagement.”

    This is the only part of your argument I have some trouble with. Trump may have conspired to disrupt a congressional proceeding…and his inaction while the Capitol was being stormed should have led to a decisive impeachment conviction….but did the events on J6 represent a violent attempt to over-throw the U.S. government? Or, restated, was there legitimate concern that the violent efforts would frustrate the peaceful transition of power?

    I’m skeptical that this was proven in part because no one from J6 has been even charged with insurrection. The closest charge was seditious conspiracy. Federal prosecutors don’t seem eager to prove insurrection.

    Second, the electoral vote count was at best delayed. If congress had been decimated in a hail of gun fire and lobbed grenades, then we have an elevated intensity of action. Yes, there were chants to hang Mike Pence and capture Nany Pelosi. Yes, the rioters had zip ties and make-shift weapons. Yes they used violence to enter the Capitol and many Capitol workers believed they were in mortal danger. But whatever fake electoral slates were planned to be substituted, the entire conspiracy still could realistically face judicial review. Meaning, the Supreme Court would have likely rejected the administration’s read of the electoral count act and Biden would still have been inaugurated.

    Now you might complain that because it was a bumbling insurrection does not mean it wasn’t an insurrection. An official constitutional function was in fact obstructed. The Colorado Court did hold a hearing where both sides offered testimony and evidence. Some due process was afforded.

    Still, Trump’s incitement also has a lot of 1A protections. An insurrection conviction would have required proof of intent. This likely would not have been easy. I think fairness demands more than meager amount of due process.

    Yes, I agree that the whole officer argument seems tedious. If an insurrectionist can’t run for Congress, then most rational people would agree he shouldn’t run for President. Same with the oath. Neither of these seem like great arguments to resolve the question. Unfortunately, I think the consequentialists have the better argument here.

    AJ_Liberty (1b680a)

  27. Mattsky, it’s not “holding responsible”: that’d be criminal litigation (which should be done).

    Jefferson Davis was never charged for insurrection or rebellion – and yet we logically understand he’d be ineligible under this amendment. The same can apply to Trump.

    SamG (4e6c22)

  28. The farmers of the amendment thought otherwise, as documented in their discussions about the amendment text.

    SamG (4e6c22)

  29. Nic, this will go to SCOTUS and they’ll rule as they will. Plain-text and Originalist wise – this is what they expected it to do. That we haven’t had to deal with it in 155 years is good: it sucks we have to deal with it now.

    SamG (4e6c22)

  30. The comparison is awful. Davis never attempted to run for office again. Also Jefferson Davis was never prosecuted because Johnson granting amnesty and pardon to all participants in the rebellion.

    Mattsky (140433)

  31. Amnesty came later, and from Congress.

    The comparison is valid for the period prior – regardless of pardon, he had still taken part in an insurrection and was thus ineligible.

    SamG (4e6c22)

  32. To come to the Colorado decision, ignoring CO state law, which is actually immaterial to the real argument, you need to decide

    1. Did the clause only apply to the Civil War? They could have said that, and they didn’t, so no.

    2. Does the clause include presidents? The absurdity test, along with the congressional debate make it clear that it did, or it should, or it would be crazy if it didn’t. So, yes it includes presidents (and vice-presidents).

    3. Do states have sufficient control over their presidential primaries that they can make this call, even if every other condition is met? I think this is a weak claim, as a number of federal rules have been imposed on state primaries (e.g. you can’t exclude black folks from voting by excluding them from party membership).

    Is it a party function, or is it a state function? It is clearly not a federal function. Can the state require a primary AND ban a candidates for this cause? They cannot require an open primary for president, nor can they require a party to allow non-members to vote in their primary. This may depend heavily on state law in a given instance, but I don’t see any federal intervention outside of that.

    4. Do states have sufficient control over their choice of presidential electors? Damn right they do. They do not even have to hold an election if they choose not to.

    And, of course,

    5. Did Trump engage in an insurrection? “Aye, there’s the rub”

    5a. What do you mean by insurrection?
    5b. How is this determined? Is it a political question, like impeachment, or is it a criminal question? In either case there needs to be due process, although the rules for that process differ in the two cases.
    5c. Who makes the actual determination?

    and then we come to 6, which our host suggests is a mere bagatelle:

    Can our political system survive the disqualification of a major presidential candidate, even if 1-5 are met?

    If we are talking about Trump being disqualified from a few primaries, I think it will just guarantee Trump the nomination (that may not matter). Like a bad call in the middle of a football game, you don’t like it, but you still try to win.

    If we are talking about disqualifying Trump after his nomination, or battleground states keeping him off the ballot, I think that will make the election invalid and the “winner” illegitimate.

    If we are talking about disqualifying him after a victory, we are literally talking secession and civil war.

    The Constitution is not a suicide pact. Really it isn’t.

    Kevin M (ed969f)

  33. Patrick,

    You dismiss the anger of Trump’s unfortunately many supporters as meaningless compared to the Law. Have you discussed this with people who are not trained to the Law? I have, and some of Trump’s people are already seething.

    I would actually fear not only for this nation, but for my family and friends, if Trump were denied an electoral victory by this means.

    Not only would it reinforce his supporters belief about 2020, but it would seem to them to be an open Steal. The quiet part out loud. Instead of what happened on J6, you would have spontaneous uprisings against federal buildings nearly everywhere, and local challenges to authority many places.

    Many many people would die. More than died in Tienanmen Square, probably an order of magnitude more. But heck, the State would win and Truth would prevail. Might not take more than a month.

    Lincoln was willing to countenance the continuation of slavery to avoid Civil War. Allowing Trump on the ballot is quite a bit less than that.

    Kevin M (ed969f)

  34. A state can decline to tally votes cast for write-ins.

    In 1992, the California presidential primary was held after Perot declared, and many voters wanted to write his name in on the GOP and Democrat ballots. But because Perot hadn’t filled out the proper form in time, his name was not a valid write-in vote.

    Many people wrote his name in anyway, and their votes were not tallied.

    Kevin M (ed969f)

  35. Going forward, I fully expect states to add a requirement where the applicant must state they are eligible per A14S3.

    Let’s say they had that now. How does anything change? Or are you expecting Trump to say No?

    Kevin M (ed969f)

  36. it should rule that Section Three was never meant to apply to the President by reason of that can of worms.

    The Congress has the final say, although I note that the House version of the Electoral Count Act dropped the bit about throwing out votes for insurrectionists.

    Kevin M (ed969f)

  37. Rephase:

    The Congress has the final say, although I note that the Senate did not agree to the House version of the Electoral Count Act with its bit about throwing out votes for insurrectionists.

    Kevin M (ed969f)

  38. As SamG pointed out, there was a trial in Colorado, and in Maine there was a hearing consistent with Maine’s law.

    There was no confrontation of witnesses, for starters, so just on that one point there was no trial.

    Kevin M (ed969f)

  39. Talk to me again after Trump is convicted for something. Jack Smith really needs to bring a relevant charge if we are going to go down this path.

    Kevin M (ed969f)

  40. In news from a real supreme court. The bottle deposit crook netanyahu was denied a get out of jail free card by Israel’s supreme court who clamped down on bibi’s attempt at court packing and law changing to keep from being prosecuted for his numerous criminal activities like his government bottle deposit caper and his bribe and gift scam. Now netanyahu’s cut of the money Qatar sent to hamas that bibi demanded be untraceable cash in bags payments is going to be investigated. He makes bob melendez look like a piker.

    asset (0fa8de)

  41. As SamG pointed out, there was a trial in Colorado, and in Maine there was a hearing consistent with Maine’s law.

    And in one Monty Python movie, they put the accused witch on a scale to see if she weighed as much as a duck.

    The requirement is Due Process. Process which proves the ultimate fact. As indisputably as having attained to the age of thirty five years or being a natural born citizen. (For state Secretaries of State, that a Ford Galaxie 500 is a passenger car.)

    nk (bbc2a9)

  42. Do states have sufficient control over their presidential primaries that they can make this call, even if every other condition is met?

    I think that question runs into a 14th Amendment issue, Kevin, specifically the Equal Protection clause. It’s what ended Al Gore’s case in December 2000, and it’s why the USSC should take the case, to establish common ground rules among all the states.

    Paul Montagu (d52d7d)

  43. @38 again, it was a civil trial not a criminal one. Witnesses aren’t required. “Due process requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly”

    SamG (4e6c22)

  44. @23

    The amendment says nothing about requiring conviction. From a base eligibility perspective, it’s a civil matter.

    SamG (4e6c22) — 1/3/2024 @ 7:01 pm

    Yes it does.

    See section 5.

    Section 5 Enforcement
    The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    So, I challenge Patterico and others who believes Trump engaged in an “insurrection” to square section 5 to the idea that section 3 is “self-executing”.

    whembly (5f7596)

  45. @27

    Mattsky, it’s not “holding responsible”: that’d be criminal litigation (which should be done).

    Jefferson Davis was never charged for insurrection or rebellion – and yet we logically understand he’d be ineligible under this amendment. The same can apply to Trump.

    SamG (4e6c22) — 1/3/2024 @ 8:18 pm

    Right, but then Congress codified what constituted “insurrection” later.

    You have to take account to any legislative efforts that further clarifies enforcements.

    whembly (5f7596)

  46. IANAL but I share Whemblys concern from comment 44.

    Time123 (a47518)

  47. Due process for the deprivation of the most celebrated right of a natural born citizen is different from due process for revocation of license plates.

    @38 again, it was a civil trial not a criminal one. Witnesses aren’t required.

    Not so, but we’ll let it lay.

    “Due process requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly”

    Among other things, those are not the only requirements. And even so, both Colorado and Maine made it up as they went along.

    nk (bb1548)

  48. Being taken off the ballot is depriving Trump of liberty.

    Mattsky (80e2ab) — 1/3/2024 @ 6:25 pm

    No, it’s not.

    The traditional conception of liberty refers to freedom from physical restraint or confinement. Freedom from confinement is one aspect of the liberty interest that the Due Process Clause protects, but the Supreme Court has also construed the liberty interest to include other common law and statutory rights.
    ………
    Outside the criminal context, the Court has expanded the concept of liberty beyond freedom from physical restraint to include various other protected interests, some statutorily created and some not. …….The Court explained (in Ingraham v. Wright 445 U.S. 480, 483 (1980)) that the liberty interest protected by the Due Process Clause included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”

    In some cases, the Court also appeared to expand the notion of liberty to include the right to be free from official stigmatization, finding that the threat of such stigmatization could in and of itself require due process. ……in the 1976 case Paul v. Davis, the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in the loss of a statutory entitlement.

    Source

    There is no common law or statutory entitlement to be placed on a ballot or to run for President.

    Rip Murdock (d2a2a8)

  49. A state court has found Trump guilty of a federal crime in a civil trial. The feds haven’t charged him. The allegations took place out side of the court’s jurisdiction. That wasn’t due process it was a kangaroo court.

    The DOJ has told us that only the federal government can enforce immigration laws. Both are federal laws.

    Mattsky (80e2ab) — 1/3/2024 @ 6:46 pm

    Untrue. The Colorado decision wasn’t enforcing 18 U.S. Code § 2383, it was determining if Trump was eligible to be placed on the Colorado primary ballot. Trump’s personal freedom was not at stake.

    Rip Murdock (d2a2a8)

  50. There was no confrontation of witnesses, for starters, so just on that one point there was no trial.

    Kevin M (ed969f) — 1/3/2024 @ 11:18 pm

    Both sides presented, and cross-examined, witnesses in the Colorado district court hearing.

    Rip Murdock (d2a2a8)

  51. #44 (whembly)

    As the lawyers know (and most of the rest of you), the 14th amendment is the vehicle which prevents state governments from taking away rights guaranteed in the Bill of Rights. This is what makes the “self-executing” argument kind of stupid. It would make the much of Supreme Court jurisprudence since the 30s subject to whether Congress had implemented it by appropriate legislation. Because if that Section 5 governs Section 3, it also governs Section 1. So that argument — which is of a piece with all the other pettifogging nyannh nyannh nyannh arguments from the Trumpers — feels foolish to me.

    I am with mattsky and nk — there is a fundamental right being taken away from Trump by action of the colorado courts by his being banned from the ballot — and that means due process should be coming into play.

    Appalled (b06191)

  52. Ilya Somin giving us a taste of Marxist pilpul again? It did not get any better with age.

    nk (bbc2a9) — 1/3/2024 @ 6:15 pm

    Rather than shooting the messenger, how about confronting his argument?

    Rip Murdock (d2a2a8)

  53. Due process occurred in Colorado: there was a civil trial that lasted two weeks. Trump’s team made its arguments, and were ultimately ruled against.

    SCOTUS will have to consider section 5’s intent and use: it logically applies to Congress passing statutes related to ensuring the rights in the amendment are applied to the states, while the text of section 3 is rather explicitly not related to rights.

    And for us, ultimately we get to grab some popcorn and kick back while we see how SCOTUS wrangles with these issues.

    Sam G (8d2ed1)

  54. Rather than shooting the messenger, how about confronting his argument?

    I already did the last time it was posted here. The right of a natural born citizen who has attained to the age of thirty five years to run for President is not a sack of potatoes from the commissar for turning in your neighbors for revisionism. It is a liberty interest taught to American children in grade school.

    nk (bb1548)

  55. It is a liberty interest taught to American children in grade school.

    nk (bb1548) — 1/4/2024 @ 9:31 am

    Not according to the Supreme Court (at least up to now).

    Rip Murdock (d2a2a8)

  56. Not according to the Supreme Court (at least up to now).

    What?!!!? Is there an actual Supreme Court case, or are you just buying into Somin’s common law/statutory horsesh!t? Even in the Sobiet that wouldn’t fly. It’s in writing in Article II.

    nk (bb1548)

  57. Stomping feet.

    Rip Murdock (d2a2a8)

  58. So there is no actual Supreme Court case. Just Somin’s dialectical extrapolation.

    nk (bb1548)

  59. @51 #44

    (whembly)

    As the lawyers know (and most of the rest of you), the 14th amendment is the vehicle which prevents state governments from taking away rights guaranteed in the Bill of Rights. This is what makes the “self-executing” argument kind of stupid. It would make the much of Supreme Court jurisprudence since the 30s subject to whether Congress had implemented it by appropriate legislation. Because if that Section 5 governs Section 3, it also governs Section 1. So that argument — which is of a piece with all the other pettifogging nyannh nyannh nyannh arguments from the Trumpers — feels foolish to me.

    I don’t see that compelling… at all.

    We literally have Section 5 describing Congress must issue legislation for enforcement if this Article.

    Congress… re-codified a post CW2 statute in 1948 (18 U.S. Code § 2383 ) that determines what is/isn’t an insurrection.

    That’s the state of where we’re at. My argument, is that you cannot ignore 18 U.S. Code § 2383 and somehow section 3, by itself, is “self-excuting” now.

    I am with mattsky and nk — there is a fundamental right being taken away from Trump by action of the colorado courts by his being banned from the ballot — and that means due process should be coming into play.

    Appalled (b06191) — 1/4/2024 @ 9:20 am

    For sure, Trump has a due process claim here.

    whembly (5f7596)

  60. Whembly:

    Here is the text of the XIV Amendment:

    Section 1
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Section 2
    Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Section 3
    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.

    Section 4
    The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section 5
    The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    If Section 5 applies to Section 3, it applies to the entire Article. It basically ends up subjecting much of our fundamental rights, as established by Court rulings since the 30s, to requiring implementing legislation by Congress. Even if that was the originalist intent of the Radical Republicans in creating this amendment, the Court will not overturn 80 years of incorporation doctrine to save Trump’s hide.

    Appalled (b06191)

  61. It’s what ended Al Gore’s case in December 2000, and it’s why the USSC should take the case, to establish common ground rules among all the states.

    Bush v Gore has no precedential value, as the opinion stated.

    Kevin M (ed969f)

  62. @38 again, it was a civil trial not a criminal one.

    But it had deprivation of rights as an outcome. How would you take it if your right to vote was removed through a civil proceeding?

    Kevin M (ed969f)

  63. And Rip, would YOU accept losing your right to vote based on a civil trial in which you were unable to call witnesses or rebut testimony. After all, your right to vote is not “life, liberty or property.” At least for similarly cramped values of “liberty.”

    Kevin M (ed969f)

  64. There is no common law or statutory entitlement to be placed on a ballot or to run for President.

    There is the equal protection of the laws and an (exhaustive) list of requirements for the office. The stated cause for removing him implies a level of process and proof.

    Removing a genuine candidate from the ballot for reasons other than not meeting that short list of qualifications is barred by US Term Limits v Thornton.

    Kevin M (ed969f)

  65. @60

    If Section 5 applies to Section 3, it applies to the entire Article.

    Appalled (b06191) — 1/4/2024 @ 10:34 am
    That is correct.

    Otherwise, why have section 5? What its purpose?

    Literally read the text:
    The Congress (Not Executive nor Judicial branch)
    shall have the power (amendment stating Congress only has this power)
    to enforce, (via Congress’ legislative perogative)
    by appropriate legislation, (again, only Congress issues legislation)
    the provisionS of this article. (ProvisionS is dictating the entirity of the 14th Amendment)

    whembly (5f7596)

  66. @65 @Appalled
    Nowhere in Article 14, Section 5 states it only applies to ‘x’.

    What it does say is “The Congress shall…the provisions of this article.”

    How can you read that as section 5 does NOT apply to section 3?

    whembly (5f7596)

  67. Justice Samour also pretty much refutes the self-executing argument in his dissent, relying on Griffin’s Case from 1869, where a defendant, tried before a judge who was disqualified by the 14th Amendment argued that the man should have been removed from the bench the day the 14th Amendment passed.

    The Supreme Court rejected that and said that an individual proceeding is required, and that the form of these proceedings “can only be provided for by Congress.” The only law that exists now is USC 18 section 2383, under which Trump has not even been charged, let alone convicted.

    Kevin M (ed969f)

  68. Whembly,

    It used to be the law that the Bill of Rights applied to the Federal government, but not state and local government. The Courts, over the years, interpreted the 14th Amendment as incorporating the Bill of Rights and applying to state and local governments. You believe that the Courts have been mistaken, or are limited to what Congress has enabled.

    You realize, of course, that the Heller decision is now invalid in your view, and states and local governments may now apply the most draconian gun control measures imaginable.

    Appalled (b435ba)

  69. @68

    Whembly,

    It used to be the law that the Bill of Rights applied to the Federal government, but not state and local government. The Courts, over the years, interpreted the 14th Amendment as incorporating the Bill of Rights and applying to state and local governments. You believe that the Courts have been mistaken, or are limited to what Congress has enabled.

    You realize, of course, that the Heller decision is now invalid in your view, and states and local governments may now apply the most draconian gun control measures imaginable.

    Appalled (b435ba) — 1/4/2024 @ 11:50 am

    You are wildly misinterpreting my positione, imo.

    Appalled, incorporation has nothing to do with Section 5 of the 14th Amendment.

    My argument does nothing regarding to the validity of Heller.

    Section 5 is clear, that it is only Congress who can actually enforce the provisions in the 14th Amendment.

    Congress did so, by passing a law in 1948 that statuatorily define criminal insurrection in federal law (18 U.S. Code § 2383).

    So, we now know what constitutes as insurrection under federal law, and Section 5 directs us to use 18 U.S. Code § 2383 whether or not to apply sanctions in violation of said statute.

    whembly (5f7596)

  70. And Rip, would YOU accept losing your right to vote based on a civil trial in which you were unable to call witnesses or rebut testimony. After all, your right to vote is not “life, liberty or property.” At least for similarly cramped values of “liberty.”

    Kevin M (ed969f) — 1/4/2024 @ 10:50 am

    As I said above, the Colorado district court did hold a hearing over multiple days, with both sides presenting and cross examining witnesses.

    Rip Murdock (d2a2a8)

  71. Kevin M (ed969f) — 1/4/2024 @ 10:50 am

    See here for full video of the hearing.

    Rip Murdock (d2a2a8)

  72. > Can our political system survive the disqualification of a major presidential candidate, even if 1-5 are met?

    If the answer to that is ‘no’ then our political system is already on the edge of death, and won’t survive the *failure* to disqualify, either.

    On some level your argument boils down to: “we can’t enforce the ban on insurrectionist office holders because doing so will cause an insurrection” which (a) may very well be true, but (b) also means that we are no longer a liberal democracy with respect for the rule of law, and are simply turning into a mob democracy in which the law and process have stopped to matter and the mob gets what it wants by killing any who disagree.

    aphrael (71d87c)

  73. Far better to force the mob to actually *do* it, IMO, than to cower in fear that they might.

    aphrael (71d87c)

  74. ☝️

    Sam G (8d2ed1)

  75. Already a contender for Reply of the Year, aph.

    And if Rip is out there, there is Infinity-1 degrees of difference between you and DCSCA. I am sorry on that one.

    urbanleftbehind (659528)

  76. whembly —

    See:
    https://www.law.cornell.edu/wex/incorporation_doctrine#:~:text=The%20incorporation%20doctrine%20is%20a,applies%20both%20substantively%20and%20procedurally.

    The incorporation doctrine is a constitutional doctrine through which parts of the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally.

    Our host notes: Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to “remove” a disability means the disability is there until removed.

    Appalled (b06191)

  77. The military leadership hates trump and will be happy to help the democrats take the garbage out.

    asset (be178e)

  78. @72

    > Can our political system survive the disqualification of a major presidential candidate, even if 1-5 are met?

    If the answer to that is ‘no’ then our political system is already on the edge of death, and won’t survive the *failure* to disqualify, either.

    On some level your argument boils down to: “we can’t enforce the ban on insurrectionist office holders because doing so will cause an insurrection” which (a) may very well be true, but (b) also means that we are no longer a liberal democracy with respect for the rule of law, and are simply turning into a mob democracy in which the law and process have stopped to matter and the mob gets what it wants by killing any who disagree.

    aphrael (71d87c) — 1/4/2024 @ 1:28 pm

    Or, its really about how NeverTrumpers can’t stop being hyperbolic nincompoops when they’re advocating the “insurrection” premise.

    You can honestly hold an opinion that Trump engaged in an insurrection, and as such, refuse to vote for him. Even to the point where your advocacy in convincing other voters to not vote for him because you sincerely believe he’s an insurrectionist.

    But, that doesn’t mean Trump meets the legal threshold required for disqualification, as dictated by the 14th Amendment’s, Section 5 directive. Section 5 is part of the 14th Amendment. It doesn’t stand on it’s own.

    So, understand that whenever any of you label Trump an insurrectionist…I treat it as simply a hyperbolic emotional response, due to sheer animus, rather than a legal determination.

    whembly (5f7596)

  79. @76

    Our host notes: Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to “remove” a disability means the disability is there until removed.

    Appalled (b06191) — 1/4/2024 @ 1:43 pm

    I still don’t see how the incorporation doctrine has anything to do with the debate on hand.

    You are completely ignoring Section 5.

    whembly (5f7596)

  80. @Patterico

    …idea that you just can’t enforce this thing no matter what they law actually says.

    I don’t think the courts/executive should unilaterally not enforce the law because it may anger some section of the populace.

    SCOTUS has shown that they’re willing to take on tough cases and render the right judgment, even if unpopular by the populace. (see Heller and Dobbs)

    whembly (5f7596)

  81. I don’t think the courts/executive should unilaterally not enforce the law because it may anger some section of the populace.

    It depends how many, doesn’t it? In a democracy, the People are the ultimate judge. If they elect Trump, they elect Trump and disqualifying the choice of a majority (as counted by the electoral college) is wrought with peril. If not ballots….

    Kevin M (ed969f)

  82. Our host notes: Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to “remove” a disability means the disability is there until removed.

    Appalled (b06191) — 1/4/2024 @ 1:43 pm

    CO Justice Samour (and CJ Chase in 1869) destroyed that argument in a case on point.

    Kevin M (ed969f)

  83. @82 On point Kevin.

    @Patterico @Appalled
    https://www.thefp.com/p/bill-barr-banning-trump-from-the


    As a legal matter, states do not have the power to enforce the disqualification provision of the Fourteenth Amendment by using their own ad hoc procedures to find that an individual has engaged in an insurrection. If the Justice Department, in pursuing its criminal case, had found that Trump had engaged in insurrection, it would be another story. But it has not.

    Section Three of the Fourteenth Amendment was ratified in 1868. Its immediate aim was to bar former officials from holding office again if they had betrayed the Union by serving in the Confederacy. Section Three states that if a federal or state officeholder, having taken an oath to support the Constitution, “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” that person is disqualified from holding federal or state office. Section Five of the amendment goes on to grant Congress the power to enforce this provision “by appropriate legislation.”

    These provisions would be easy to apply if the person in question was already convicted of engaging in insurrection or rebellion. But how is it to be applied to someone—in this case, Trump—who has not been tried in court and found guilty of such acts?

    Obviously, there has to be a fair fact-finding procedure before someone can be branded an insurrectionist. But what should that process be? The Fourteenth Amendment is silent on this. The terms “insurrection” and “engaging” are mushy. When does a public disturbance become an insurrection and when does an individual’s level of involvement amount to “engagement”? What is the standard of proof required? Is it evidence beyond a reasonable doubt, which is what would be required to convict someone for the crime of insurrection, or mere preponderance of the evidence? Does the accused have the right to cross-examine witnesses and to compel witnesses to testify? Does the accused have the right to a jury? Or can a single judge or election official make the final ruling?

    The key issue is who gets to set these procedural and definitional rules. Is each state free to make up its own rules? Or is it Congress’s job to set up a uniform enforcement mechanism?

    These questions were answered in 1869—the year after the amendment was adopted—by then-Chief Justice of the Supreme Court Salmon Chase. In the seminal case of In re Griffin, Chase, acting as presiding judge for the circuit court in the District of Virginia, rejected a defendant’s claim that his conviction was void because it had been entered by a judge who had been a Confederate official and thus disqualified from holding judicial office. Chase ruled that Section Three of the Fourteenth Amendment is not self-executing. That is, it cannot be enforced unless and until Congress enacts legislation that sets up an enforcement mechanism. And Congress, in 1869, had not implemented any such enforcement procedure. In other words, Congress—not the states—gets to decide how individuals are disqualified from office under the Fourteenth Amendment.

    In fact, Congress did decide. It did so the year after Justice Chase’s decision when Congress enacted the Enforcement Act of 1870. That law contained two provisions for the expressed purpose of enforcing Section Three. One provision set up a mechanism by which federal attorneys could bring a civil action to remove from office a person alleged to be disqualified for engaging in insurrection or rebellion. (This provision was repealed in 1948.) The second provision authorized criminal prosecution of someone for knowingly accepting or holding office in violation of Section Three. This provision has evolved into Section 2383 in the current criminal code, which makes it a crime to engage in rebellion or insurrection against the United States and disqualifies anyone who does from holding federal office.

    All SCOTUS needs to do, is reaffirm Griffin, as Trump is not charged/convicted of 18 U.S. Code § 2383.

    whembly (5f7596)

  84. Trump lost the popular election in 2016, so stating “the People are the ultimate judge” is not true, at least as long as the Electoral College exists.

    Sam G (8d2ed1)

  85. @84

    Trump lost the popular election in 2016, so stating “the People are the ultimate judge” is not true, at least as long as the Electoral College exists.

    Sam G (8d2ed1) — 1/4/2024 @ 2:26 pm

    The electoral college *is* “the People”.

    whembly (5f7596)

  86. Since a significant amount of “The People” have chosen to not move out of states where their vote cannot either swing the the electoral win (“my vote doesn’t count because I am so outnumbered by the opposing party!”), or they are so superfluous towards their party’s winning candidate (“my vote doesn’t count because my candidate already won the state by a bazillion votes!”), they never are not the “ultimate judge.”)

    Unless your claim is they cannot move to a state where their vote counts because of trinkets.

    BuDuh (456091)

  87. Our host notes: Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to “remove” a disability means the disability is there until removed.

    CJ Salmon Chase said this was not so, riding circuit, in In Re Griffin (1869), allowing a judge to remain on the bench and refusing to overturn a judgement of his court, even though he was facially in violation of Section 3, having served in a Confederate legislature after previously taking an oath to the United States.

    Kevin M (ed969f)

  88. I think it was over 4 million extra idiots voted for the Dem nominee in the 2016 California General Election. Hillary didn’t need them to win in California.

    Just think if they understood The Electoral College beyond scripted complaining. Which small margin states could they have won if they voted with their feet?

    Their laziness certainly made them the ultimate judge in 2016.

    BuDuh (456091)

  89. The electoral college *is* “the People”.

    The Congress has to accept the votes. The House attempted to give themselves the power to reject votes from those the House determined had violated 14.3. The Senate did not concur, but the thought will still be there.

    Kevin M (ed969f)

  90. Just think if they understood The Electoral College beyond scripted complaining. Which small margin states could they have won if they voted with their feet?

    Or if Hillary had campaigned in Pennsylvania and Wisconsin instead of Illinois.

    Kevin M (ed969f)

  91. The Congress has to accept the votes

    The voted-in-by-the-people Congress?

    BuDuh (456091)

  92. Unless your claim is they cannot move to a state where their vote counts because of trinkets.

    Sometimes you can stay and fight, like in FLorida. MY dream is that California eventually flips after they make homeowners house the homeless in spare bedrooms, the sales tax is at 23% and the only legal cars are the ones from Brazil. Of course if that ever happens the Congress will be 75% red.

    Kevin M (ed969f)

  93. The voted-in-by-the-people Congress?

    Pretty sure it’s the new Congress, not the lame-duck one. In theory that would follow a Trump victory to the red.

    Kevin M (ed969f)

  94. I’ve read it all here and still think this word insurrection in the 14th is ill defined (on purpose) by Trump haters, lovers (who in my mind are cohabitants of the fringe) and insurrection is also well defined by context preceding its ratification in 1868 (confederates who changed sides for 4 years, possibly took up military arms against the USA, abandoned their seats in Congress, are disqualified unless 2/3 of Congress forgives) That would be a high bar set for insurrection disqualification under the 14th. Maybe the intent of the 14th was to keep weaseling blowhards from claiming elections were stolen in 2000, 2016, 2020 thus inciting insurrection much milder than Civil War threshold but that tradition is not clear. It is clear from context that they were speaking to people who took insurrection to the point of military uniformed, military armed secession. I’ll use Gloria Leonard’s quote again “The difference between pornography and erotica is the lighting.”
    The context and time of ratification show us the harsh lighting of what insurrection was, but cannot tell us much if anything about threshold below the standard of our Civil War. The harshest lighting expert cannot elevate Trump’s performance(s) surrounding Jan 6th to 1868 standards and the most aesthetically sensible lighting artist can’t remove Trumps voice from the production entirely.

    Yes we have had judges hear arguments and as an illustration would ask to consider the current NYC civil case against Trump and to say that NYC has not helped the public perception of that type of process. (a due process of no due process before a judge whose mind was already made up) I do not think we as a nation should go that route. This is funny because the NYT calls the judge “Arthur F. Engoron, the unconventional New York judge overseeing the case” Ah. Not partisan, biased hack or age related mentally challenged… Ergoron is “unconventional”

    If we want a threshold for what is and is not insurrection in this type of case, we should have the courage to set one and set one high. Higher than this and brought to higher group of serious minded individuals. The framers of 14th seem to have thought that “group” would be Congress, but let be honest and admit that institution is currently incapable and by its own actions, self admittedly so.

    steveg (004863)

  95. Section 2
    Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Trump got 1,364,607 votes (41.90%) in Colorado in 2020. If Colorado (for one) persists in denying these people the right to vote for him in 2024, then Colorado’s representation in the House should be reduced by that percentage and its number of electoral votes too. As a consolation to Democrats, Lauren Gropert might be caught up in the sweep.

    nk (bb1548)

  96. Kevin M (ed969f) — 1/4/2024 @ 3:02 pm

    Pretty sure it’s the new Congress, not the lame-duck one. In theory that would follow a Trump victory to the red.

    It was the lame duck Congress through the 1932 election. It was changed by the 20thamendment, also called the “Lame Duck” amendment.

    Trump has no coattails. The Senate and House will probably flip in opposite directions.

    Sammy Finkelman (1d215a)

  97. nk (bb1548) — 1/4/2024 @ 3:27 pm

    f Colorado (for one) persists in denying these people the right to vote for him in 2024, then Colorado’s representation in the House should be reduced by that percentage and its number of electoral votes too.

    It’s not depriving anyone of the right to vote – only the right to cote for a certain candidate for president, and it has aright to do so, but must do so explicitly. In 1876, the year it was admitted as asatte, the state of Colorado had its legislature select the Electors, the last time any state legislature did that. (South Carolina also did was the only state that still did that from 1836 to 1860. I am not sure if the last time any other state did that was 1832 or 1836)

    In 1892 Michigan crated a special district system (but didn’t dare to have the legislature pick the Electors)

    https://en.wikipedia.org/wiki/1892_United_States_presidential_election_in_Michigan

    …The switch was made by the newly elected 1890 Democratic legislature, which had gained control of the state for the first time since before the Civil War.[1][2] The change was an attempt at boosting Democratic candidate Grover Cleveland’s chances of winning a second, nonconsecutive term, who had run in the previous election and won the popular vote, but lost in the electoral college. Controversial among Republicans, the party fought all the way to the Supreme Court in efforts to prevent it, though were unsuccessful. The split ultimately had no effect in Cleveland’s victory, and the system was quickly repealed when Republicans regained control after the election. This is the only instance of Michigan splitting its electoral votes among multiple candidates. A law later passed in 1954 that prohibits faithless electors prevents a similar occurrence, barring a return to the district method.[3][4]

    Michigan was won by the Republican nominees, incumbent President Benjamin Harrison of Indiana and his running mate Whitelaw Reid of New York. The pair received nine of the state’s electoral votes while the Democratic ticket earned five…

    I think they didn’t even use regular Congressional districts

    https://en.wikipedia.org/wiki/McPherson_v._Blacker

    The suit was filed by several of these electors chosen in the 1892 election, including William McPherson, against Robert R. Blacker, the Secretary of State of Michigan. It was the first Supreme Court case to consider whether certain methods of states’ appointments of their electors were constitutional.[3] The Court, in a majority opinion authored by Chief Justice Melville Fuller,[4] upheld Michigan’s law, and more generally gave state legislatures plenary power over how they appointed their electors.[1] The Court held that Article Two of the United States Constitution also constrains the ability of each state to limit the ability of its state legislators to decide how to appoint their electors.[5][6]

    I think that means a state constitution cannot constrain the legislature, although that might not be upheld today. Now they might hold that the constitution is part of the legislature.

    More:

    The ability of states to determine the selection and apportionment of their electors was later reaffirmed in another Supreme Court case, Bush v. Gore (2000).[4] McPherson was also cited in Bush v. Gore by both George W. Bush[7] and by Chief Justice William H. Rehnquist in his concurring opinion. Rehnquist admonished that “in a Presidential election the clearly expressed intent of the legislature must prevail.”

    But if course they have to pick the method before the date that the electors are chosen.

    Sammy Finkelman (1d215a)

  98. As a legal matter, states do not have the power to enforce the disqualification provision of the Fourteenth Amendment by using their own ad hoc procedures to find that an individual has engaged in an insurrection.

    That’s what I said. They cannot adjudicate that.

    But, in the case of a vote for electors, they can exclude anyone from being voted for. But they cannot use use the 14th amendment as a basis for knocking someone off the ballot although they could use someone or some body’s opinion as such a basis. Or any other criteria except maybe race.

    Sammy Finkelman (1d215a)

  99. Rip Murdock (d2a2a8) — 1/4/2024 @ 1:06 pm

    the Colorado district court did hold a hearing over multiple days, with both sides presenting and cross examining witnesses.

    I understand that its conclusion was based entirely on the report of the Jan 6 committee and maybe the impeachment resolution (which said he engaged in incitement of insurrection with his speech at the Ellipse (never charging any secret plans)

    That was nonsense.

    Sammy Finkelman (1d215a)

  100. Place Your Bets…..

    ……….
    Conventional wisdom has it that a conservative-leaning Supreme Court featuring three Trump nominees would reject the premise for disqualification, allowing his name to remain on the ballots.
    ……….
    Perhaps the most prominent figure suggesting the court could shock the political world is J. Michael Luttig, a renowned conservative former federal appeals court judge turned prominent Trump critic.

    When the Colorado Supreme Court broke ground by kicking Trump off the state’s primary ballot last month, Luttig called the decision “unassailable.”…….
    ………
    “If the Supreme Court takes the Colorado Supreme Court case, I believe it will affirm that court’s decision to disqualify the former president from the state’s primary ballot,” he said this week.
    ……..
    UCLA law professor Rick Hasen called it “not at all legally far-fetched for the court to disqualify Trump.”

    Hasen cited the paper that spurred efforts to disqualify Trump, written by the conservative legal scholars William Baude and Michael Stokes Paulsen, whose “scholarship is often looked at by the conservative originalists on the Supreme Court,” Hasen said.
    ……..
    “Given how strong the historical evidence is, I think disqualification has a puncher’s chance at the Supreme Court,” (University of Maryland law professor Mark A. Graber) said, “but no more.”

    He said that “this is a court that either uses originalism selectively or invents history.”
    ……..
    “I think the case for upholding the disqualifications is kind of a straightforward legal one,” said University of Michigan law professor Leah Litman. The fact that many prognosticators assume the court will nonetheless rule for Trump “is a sign that most people understand that the justices/court don’t just decide these cases based on ‘the law,’” she added.

    For Vanderbilt University law professor Suzanna Sherry, the problem is this: “The justices do not want to decide this case. If they can find any way to avoid doing so, they will. If they can kick the can down the road until after November, when it will become moot, they might do that.”
    ……….
    It could rule that states are allowed to remove Trump from the primary ballot under their interpretations of the 14th Amendment but stop short of applying that to the more consequential general election ballot.
    ………
    Some of those who say the Supreme Court could surprise us have cited now-Justice Neil M. Gorsuch’s related 2012 appeals-court opinion, which those who disqualified Trump in Colorado and Maine also referenced. Gorsuch, in that opinion, cited “a state’s legitimate interest in protecting the integrity and practical functioning of the political process,” which “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

    Perhaps the most popular theory is that the court will punt. …….

    University of Texas law professor Steve Vladeck suggested in a column that the court could echo (the Colorado district court judge) in another way: by keeping Trump on the ballot citing one of the above reasons but also finding that he engaged in insurrection, an outcome Vladeck called “the closest thing for the court to a win-win” in such a fraught case.

    “The court won’t be keeping Trump off the ballot, but it won’t be endorsing his candidacy, either,” Vladeck wrote. “If anything, having Republican appointees joining Democratic appointees in holding that Trump did engage in insurrection might go a long way toward persuading those who are capable of being persuaded to cast their vote for someone else.”
    ………

    Rip Murdock (d2a2a8)

  101. Appalled (b435ba) — 1/4/2024 @ 11:50 am

    The Courts, over the years, interpreted the 14th Amendment as incorporating the Bill of Rights and applying to state and local governments.

    Using the wrong wording, as Justice Hugo Black, and now Clarence Thomas have argued.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    They used the “due process..liberty” clause, which let them pick and choose, rather than the “privileges or immunities” clause, which is what Congress had intended.

    I think there could be one difference. To the extent that “establishing” a religion is not a deprivation of s right, it might not apply.

    Sammy Finkelman (1d215a)

  102. Sammy Finkelman (1d215a) — 1/4/2024 @ 4:12 pm

    You can see the testimony of all the witnesses at the five day hearing here.

    Rip Murdock (d2a2a8)

  103. 100. the 14th amendment only comes into play after the process of election is complete.

    Note that Section 3 of the 14th amendment says:

    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…

    Now a state may regulate the selection of electors for president any which way it wants, and it only has to abide by the 15th, 19th and 26th amendments when it comes to presidential primaries, which are very unofficial elections

    I think the court would do best to say that a state’s top court is the final deciding court on what state law says, but state law cannot be based in an as yet unknown federal decision and kick it back to the Colorado Supreme Court to say whether the law of the state of Colorado removes candidates from the ballot who are objectively disqualified, or on the basis merely of an opinion that he is disqualified; and that Trump can only be removed if the removal is based on an opinion of what federal law is, and not on anyone asserting what it in fact is and that Colorado law states that an opinion is enough..

    Sammy Finkelman (1d215a)

  104. Rip Murdock (d2a2a8) — 1/4/2024 @ 9:08 am

    The Colorado decision wasn’t enforcing 18 U.S. Code § 2383, it was determining if Trump was eligible to be placed on the Colorado primary ballot.

    Actually, whether he was eligible to become president, which Colorado cannot decide, (of course the candidate can concede that) and the Colorado decision was entirely derivative of that.

    Sammy Finkelman (1d215a)

  105. The sound gets better

    Sammy Finkelman (1d215a)

  106. The court could add that the Republican Party could use or not use the results of the Colorado presidential primary, as it wishes.

    Sammy Finkelman (1d215a)

  107. So, I challenge Patterico and others who believes Trump engaged in an “insurrection” to square section 5 [The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article] to the idea that section 3 is “self-executing”.

    whembly (5f7596) — 1/4/2024 @ 8:07 am

    If I give you the power to take my car keys should I drink too much, that doesn’t strip the bartender or the cop who pulls me over of the same power. Nowhere in Section 5 or otherwise does it say that only Congress will have the power to enforce Section 3. The concept of exclusivity was well known to the drafters of the 14th Amendment, yet they didn’t include it in Section 5. Maybe that was an oversight. Maybe they thought it was implied. Maybe SCOTUS will read it in. We’ll see. But your reading is neither self-evident nor certain.

    lurker (cd7cd4)

  108. I look froward to the debate when Biden is declared “disqualified” for reasons by a state.

    Joe (141406)

  109. Ilya Somin giving us a taste of Marxist pilpul again? It did not get any better with age.

    nk (bbc2a9) — 1/3/2024 @ 6:15 pm

    Ilya Somin is a poor choice to associate with Marxist sympathies.

    lurker (cd7cd4)

  110. I owned an AK-47 for a time. It did not make me a Marxist sympathizer. If Ilya Somin wants to use materialistic sophistry to argue that liberty is government-given, I always welcome expansion of my vocabulary if you can suggest a term for it besides Marxist pilpul.

    nk (bb1548)

  111. It’s not depriving anyone of the right to vote – only the right to cote for a certain candidate for president, and it has aright to do so, but must do so explicitly.

    The Soviet commissars on the left agree with you Sammy. Only approved candidates by the left are permitted.

    NJRob (476a94)

  112. @nk: He’s arguing what is and isn’t a liberty, not whether liberties are government-given. Do you believe prohibiting an eight year old Canadian from being President of the United States deprives him of liberty?

    As for what owning an AK-47 says about one’s Marxist proclivities, it depends on provenance. Mine was (NATO-member) Romanian-made. How about yours, comrade?

    lurker (cd7cd4)

  113. Nowhere in Section 5 or otherwise does it say that only Congress will have the power to enforce Section 3

    Article 1 Section 8 begins with “The Congress shall have Power To ….”

    Who else gets to get in on the list of responsibilities that follow?

    BuDuh (f7861c)

  114. > Or, its really about how NeverTrumpers can’t stop being hyperbolic nincompoops when they’re advocating the “insurrection” premise.

    Maybe?

    I was responding to Kevin’s comment which I read as saying that, even if Trump meets the legal requirements for exclusion, he shouldn’t be excluded because the political system couldn’t survive it.

    This *might be true*. But, if it is, the Republic is *already* dead.

    What you are talking about is challenging the premise — you think Trump doesn’t meet the legal requirements for exclusion, so you’re denying the basis of the hypothetical. That’s fine … but irrelevant to the point i’m making, which is that if you accept the hypothetical that Trump *should be excluded under the law* but nevertheless think that he shouldn’t be excluded because it’s too destabilizing, you’re in fact saying — without acknowledging it — that the rule of law has *already* been replaced by the rule of the mob.

    aphrael (71d87c)

  115. > I still don’t see how the incorporation doctrine has anything to do with the debate on hand.

    > You are completely ignoring Section 5.

    Your interpretation of section 5 implies that the supreme court had no authority to use the fourteenth amendment as the basis for incorporating the bill of rights against the states — because section 5, as applied to section 1, would hold that only Congress could do so, not the courts.

    aphrael (71d87c)

  116. > f they elect Trump, they elect Trump and disqualifying the choice of a majority (as counted by the electoral college) is wrought with peril.

    What if the people elect a 22-year-old? Should the constitutional age requirement be ignored? Should a 22-year-old with massive public support akin to Trump’s be barred from the ballot?

    How is this different?

    aphrael (71d87c)

  117. > The Soviet commissars on the left agree with you Sammy. Only approved candidates by the left are permitted.

    It is regularly the case that states exclude candidates for a variety of procedural reasons. If they do that, should everyone who would have voted for that candidate be allowed to demand the state’s representation be reduced?

    aphrael (71d87c)

  118. So, I challenge Patterico and others who believes Trump engaged in an “insurrection” to square section 5 [The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article] to the idea that section 3 is “self-executing”.

    whembly (5f7596) — 1/4/2024 @ 8:07 am

    I would agree if it said “The Congress shall have the exclusive power to enforce, by appropriate legislation, the provisions of this article,” but it doesn’t.

    Rip Murdock (94fbbc)

  119. The reality is that both sides make solid arguments. That should bother people contemplating voting for Trump. There is a good case for him to be broadly disqualified. How can GOP voters be so reckless?

    AJ_Liberty (99dc9d)

  120. The handy repository of all presidential election data is here: https://uselectionatlas.org/

    Kevin M (ed969f)

  121. Using the wrong wording, as Justice Hugo Black, and now Clarence Thomas have argued.

    The privileges or immunities clause of the 14th was rendered a nullity in the 1870s, notably in the Slaughterhouse Cases, and undoing that mistake would be hard as 150 years of precedent rests on it.

    Kevin M (ed969f)

  122. What if the people elect a 22-year-old? Should the constitutional age requirement be ignored? Should a 22-year-old with massive public support akin to Trump’s be barred from the ballot?

    How is this different?

    Yes, a 22-year-old should continue to be barred from the ballot. But this scenario seems to be more akin to a case where a guy who shows a birth certificate stating that he is 36 years old is challenged on the authenticity (where have we heard claims of forged birth certificates before?), and some state AGs and election officials investigate the matter and determine on their own that he is really only 33, while other states accept that he is indeed 36.

    Being convicted of a crime in America very very very strongly correlates with the likelihood that the person actually committed that crime, but we’ve seen that it is not a 100% guarantee. Plenty of people are later judged to have been wrongly convicted. I’m actually of the opinion that if Donald Trump is found guilty of inciting rebellion then he should be barred from the ballot. But until that time, I don’t think it is wise for states to apply their own best guess as to whether or not the charge has merit and then act upon it.

    It is regularly the case that states exclude candidates for a variety of procedural reasons. If they do that, should everyone who would have voted for that candidate be allowed to demand the state’s representation be reduced?

    For the most part don’t states exclude candidates because they belong to a political party that hasn’t met the qualification to reserve a slot on that state’s ballot? This obviously isn’t going to be an issue anywhere for the Democrat or GOP candidate.

    Here’s an interesting question: if Trump is barred from the ballot in Colorado or Maine, does the GOP then have the ability to run Trump’s Vice-Presidential nominee on those state’s ballots, and in the event that the VP wins the state then the electors can just be faithless and switch over to Trump? Somebody probably already posited that scenario here; I haven’t been closely following the discussions of this matter.

    JVW (0a6352)

  123. Now a state may regulate the selection of electors for president any which way it wants, and it only has to abide by the 15th, 19th and 26th amendments when it comes to presidential primaries, which are very unofficial elections

    And again, Congress may object to an electoral vote cast by an insurrectionist. Not sure how that is cured.

    Kevin M (ed969f)

  124. This *might be true*. But, if it is, the Republic is *already* dead.

    No, it means that the Republic is wounded and cannot sustain more wounds at the moment. If Trump is actually elected to the office, by the will and wisdom of the people, you would destroy what was left of it by rejecting that choice.

    The fighting that would follow would be for who was emperor.

    Kevin M (ed969f)

  125. Think of electing Trump, with the knowledge that he might not be qualified as “jury nullification.” That happens sometimes, and refusing to honor such a verdict is far more destructive than accepting it and moving on.

    Kevin M (ed969f)

  126. What do you think the Supreme Court will decide, and how the Court will go about it? Will they rule in a matter of weeks, or will they slow walk it until past the November election and deny Trump’s appeal as moot?

    Rip Murdock (fd2d05)

  127. What if the people elect a 22-year-old? Should the constitutional age requirement be ignored? Should a 22-year-old with massive public support akin to Trump’s be barred from the ballot?

    Taking that a step further, suppose that he is indeed barred from the ballot, but in a write-in campaign the People elect him anyway, knowing full well he is only 22. Perhaps this is absurd, but I think he gets the office anyway — and the Constitution is amended to adapt to the expressed will of the People.

    Kevin M (ed969f)

  128. @127: In the CO primary case, I think the decision arranges to moot itself — tomorrow — as the deadline for printing primary ballots arrives without a ruling on an appeal.

    If such a case came to the court, I think that the decision would be that in a partisan primary, the party controls absent a civil rights violation (by exclusion).

    Kevin M (ed969f)

  129. Kevin M (ed969f) — 1/4/2024 @ 7:50 pm

    I would expect that his electoral votes would be challenged when they are being certified.

    Rip Murdock (fd2d05)

  130. @127: In the CO primary case, I think the decision arranges to moot itself — tomorrow — as the deadline for printing primary ballots arrives without a ruling on an appeal.

    In which case this whole discussion is moot. 😏

    Rip Murdock (fd2d05)

  131. Look what happened in Rome when the elites rejected Julius Caesar as Consul in 44 BC.

    Kevin M (ed969f)

  132. In which case this whole discussion is moot.

    As it pertains to CO, and it was a bit cynical there, but the actual questions raised have legs.

    Kevin M (ed969f)

  133. Kevin M (ed969f) — 1/4/2024 @ 7:55 pm

    I think the SC will take the Colorado case so they can provide a final verdict in the issue. As I mentioned before, they will issue an unsigned per curium opinion staying the decision, with arguments scheduled sometime in late February.

    Rip Murdock (fd2d05)

  134. As it pertains to CO, and it was a bit cynical there, but the actual questions raised have legs.

    Kevin M (ed969f) — 1/4/2024 @ 8:00 pm

    In which case they will need to wait for another case to reach their level. By then it will be probably too late.

    Rip Murdock (fd2d05)

  135. @nk: He’s arguing what is and isn’t a liberty, not whether liberties are government-given. Do you believe prohibiting an eight year old Canadian from being President of the United States deprives him of liberty?

    Oh! I thought Somin was talking about a 78-year old American citizen and former President born in New York.

    Sorry. Nobody tells me anything. Thank you for taking the time to set me straight.

    nk (bb1548)

  136. Msdnc barely mention clinton association with jeffery esptein and blows up trump’s association with espstein mostly showing pictures at parties ;but know evidence of wrong doing. Doesn’t mention espstein telling victim that bill clinton likes them young. Also no mention of bill and hillary threatening vanity fair with access to their hollywood freinds if they do story of bill clinton’s sex trafficking with epstein. Abc gma host complains about spiking epstein story because clinton and prince andrew are friends with ceo of disney abc parent company.

    asset (9cfb75)

  137. @85 Wrong! in 2016 3 million more people voted for clinton. In 2020 7 million more people voted for biden ;but he only won electoral college by 43,000 votes. az, 10,000 ga. 13,000 and wi. 20,000. 18% of population in 26 states control 52 senate seats. Had biden lost with over 7 million more votes the people were ready to do a general strike and military leadership hated trump.

    asset (9cfb75)

  138. What do you think the Supreme Court will decide, and how the Court will go about it? Will they rule in a matter of weeks, or will they slow walk it until past the November election and deny Trump’s appeal as moot?

    I have no idea what they will rule, but here is what I would like:

    The disqualification is a political question, and is not justiciable.

    In the case of the President, and Trump in particular, there are five places where the political question can be tested: an impeachment proceeding where disqualification may occur upon conviction; primary elections; conventions; the general election and in the Electoral Vote process.

    In the case of Senators and Representatives, the Constitution clearly states that each house judges the qualifications of its members, but the voters also judge.

    In the case of appointed officials, the Senate has to consent for some. Lesser officials can also be impeached and removed if it comes to that. A president or lower official with a penchant for appointing insurrectionists could be impeached for that reason.

    It’s not justiciable, outside of a possible prosecution under 18 USC 2383

    Kevin M (ed969f)

  139. Now, does the Senate judge the qualifications of the Vice-President?

    Kevin M (ed969f)

  140. The disqualification is a political question, and is not justiciable.

    This would not be the only case where a Constitutional provision is unenforceable. The Guarantee Clause is one example where courts have refused to get involved.

    Kevin M (ed969f)

  141. So many here are trying to twist the law into a pretzel to disqualify Trump because they believe he will win.

    Sounds like an insurrection.

    NJRob (eb56c3)

  142. NJ Rob

    This is where we are in this country (on both sides)
    I went to Drudge today its been a decade or so and I had used the site as great place to grab a headline and found one in RED. TRUMP TOOK MILLIONS FROM FOREIGN GOVT’S DURING PRESIDENCY INCLUDING SAUDI ARABIA AND CHINA

    So I go there to see. Why not? I’m curious. But to get a little background, I decided to first find out whether notorious welsher Trump had in fact donated his Presidential salary like he’s said he would nad like all things human, but particularly as in all things Trump the entire story was unclear. Unclear because charitable donations need to be declared and verified and from tax returns it is not clear. What is clear is that Trump did it his way because USA Today fact check said Trump gave gifts to the US Government. To US agencies like the Dept. of Health and Human Services, the Small Business Association and the National Parks Service. From USA today:

    Cynthia Hernandez, a spokesperson for the National Park Service, referred USA TODAY to a 2017 press release that states Trump donated over $78,000 from his salary to the agency to restore two projects at the Antietam National Battlefield in Maryland.
    Christina Carr, a spokesperson for the Small Business Administration, confirmed that the agency received Trump’s 2018 second-quarter salary detailed in the White House press briefing.
    Trump donated $100,000 of his salary to the National Institute on Alcohol Abuse and Alcoholism, an agency within the Department of Health and Human Services, in 2017, Kamara Jones, the department’s acting assistant secretary for public affairs, told USA TODAY in an email.
    Jones also said Trump donated $100,000 of his salary to the department in 2018, $300,000 of his salary in 2019 and $100,000 of his salary in 2020.

    Via the RED CAP LINK at Drudge I find this giant letdown.

    Democrats on the House Oversight Committee released a 156-page report Thursday morning accusing Trump of exploiting the presidency to financially benefit himself and members of his family. Trump’s businesses, according to the report, received at least $7.8 million from corrupt and authoritarian governments including China, Saudi Arabia and Qatar.
    The report is the culmination of a nearly seven-year investigation. It says records and documents obtained by House Oversight Democrats reveal “a stunning web of millions of dollars in payments made by foreign governments and their agents directly to Trump-owned businesses, while President Trump was in the White House.”
    Among the report’s findings and records available to the committee, China made the most payments to Trump’s businesses during his tenure, spending more than $5.5 million at Trump Tower in New York and two of Trump’s hotels in Washington and Las Vegas.

    Wow. $7.8M in hotel purchases over 4 years. Gross sales. I know Residential Landscape Contractors who have higher ANNUAL gross sales numbers than that so I am unimpressed. I’m also unimpressed because I know a little bit about hotels and search engines and can quickly find that Hyatt Hotels had a net profit Q ending Sept 2023 of 7.83% (up 133.73 Y/Y) So Drudge and the Democrats are ALL RED IN CAPS over potential Trump Organization net profit of somewhere around $611,000 over 4 years or $152,500 per year.

    So we just spent millions hunting down $611,000 of by all accounts legitimate business profits so we can counter attacks on Hunter Biden with shouts of hey look at Trump. This is where we all are right now.

    America has death spiraled into lawfare hell and we aren’t coming back. Its gathered a terminal momentum and won’t be stopped. Congratulations all around

    steveg (004863)

  143. The entire emoluments crapfest is designed by the left to make businessmen ineligible for the presidency unless they close their businesses.

    Kevin M (ed969f)

  144. I was talking to a clerk at a very clean convenience store/gas station. Well run and managed place and he’d just turned down a non-client person who wanted to use the restroom by sending the person down the road a block to a supermarket. The clerk told me that they’ve been having problems with homeless and their *ahem* advocates saying that the shop was letting some non customers use the bathrooms and the advocates for the business were saying that to be safe, the policy of the business had to be 100% consistent or it could be seen as legally discriminatory. Employees were prohibited from using their common sense discriminatory skills. That type of discrimination is not allowed anymore, and I get it. That was often pretense and misused, but the societal contract is broken because the law enforcers are very interested in discrimination resulting in fining and embarrassing law abiding business owners and citizens and simultaneously very uninterested in thefts, trespassing, public health crimes of serial poop smearing citizens. Imagine the irony and tragedy of welcoming a county health inspector into your restaurant and noticing that he/she/other has human feces on its shoe. (great line by Dennis Franz in NYPD Blue when he thinks he stepped in dog crap- his partner Jimmy Smits deadpans “you seen any dogs?)” I’m actually looking forward to watching the dystopian wrecking ball gain speed towards towards hell. I think my funds are well hedged and I can sit back (hunker down) with my dogs and small arsenal for a decade or two, eat some spam every day let it all flow by. If it gets too bad, I’ve got plan b which is keeping a running (probably illegal) old internal combustion truck (illegal(, some (probably illegal) gasoline and a well kept piece of (probably illegal) garden hose and some form of duct tape (probably illegal why? everything that used to actually work will be illegal) Ill grab the dogs get in the front seat turn on the radio (probably illegal) and take an illegal nap. Forgot to say I currently plan to leave my bitcoins to the Flat Earth Society (Present better ideas here, I’m open)

    steveg (004863)

  145. Also forgot to turn on the combustion engine. God. I’m a failure at failure

    steveg (004863)

  146. Two “famous” politicians names have been redacted from the testimony of underage girls were forced to have sex with. MSDNC wants you to think trump is one of them because they know bill clinton is the other.

    asset (9cfb75)

  147. steveg (004863) — 1/4/2024 @ 10:36 pm

    Yes, steveg, Trump only took $611,000 and not $7.8 million form the Chinese and the Arabs, and Biden was elected with only 40,000 votes from four states and not 81,283,501 votes from 50 states and DC.

    And it’s my chief complaint whenever I take a plane somewhere, too. Where do they get off charging me $300 for a round trip ticket to Tampa for a reclining seat and a seatbelt that I can pick up at a junkyard for $20?

    Your accounting only works if Trump’s bribe laundries hotels were always at full capacity and he was turning away other business in order to accommodate the Worthy Asian Governments. Keeping a business afloat by paying the operating costs is still money in the business owner’s pocket.

    nk (bb1548)

  148. Weird timing steveg,

    I was asked to check my backpack in at the customer service desk of a large supermarket even though I was not: 1. a high school student from a nearby maj-min public HS and 2. exhibiting the telltale signs of homelessness and distressed condition. I was having tires replaced at a nearby auto repair facility and was doing an impromptu tour/patronization of 2 local businesses and a park district gym.

    urbanleftbehind (659528)

  149. My local Jewel is in an up-and-coming Northwest Side neighborhood — $600K new townhomes, bike lanes, “near train” — and they’ve got the bar soap, you know, for baths and showers, under lock and key. But not much else. Go figure.

    nk (bb1548)

  150. In other news, Alexie Navalny is still ineligible to run for president of Russia, having been convicted of embezzlement and “extremism.”

    lloyd (2a2843)

  151. For a similar reason that the Foreign Emoluments Clause may not apply to a president, same for Section 3 of the 14th Amendment, specifically that a president is not an “officer of the United States”.
    I’m obviously no constitutional scholar, but Blackman-Tillman have some knowledge, and I don’t believe it’s a slam dunk that a president is such an officer under Section 3. The USSC will necessarily have to decide on jurisdiction before getting to “engaged in insurrection”.

    Paul Montagu (d52d7d)

  152. @108

    Nowhere in Section 5 or otherwise does it say that only Congress will have the power to enforce Section 3. The concept of exclusivity was well known to the drafters of the 14th Amendment, yet they didn’t include it in Section 5. Maybe that was an oversight. Maybe they thought it was implied. Maybe SCOTUS will read it in. We’ll see. But your reading is neither self-evident nor certain.

    lurker (cd7cd4) — 1/4/2024 @ 5:28 pm

    That’s pretty lame imo.

    In Constitutional law, the very first thing you would need to do is to READ. THE. ACTUAL. TEXT. without any preconception of what you think it should mean.

    Section 5 is as clear as you can be and with no archaic misinterpretation opportunities (ie, what is a militia in 2nd?) Which, again, that it is only Congress who can actually enforce the provisions in the 14th Amendment.

    Congress did so, by passing a law in 1948 that statuatorily define criminal insurrection in federal law (18 U.S. Code § 2383) that’s in effect today.

    whembly (5f7596)

  153. Anwälte! Mein Gott!

    A Constitutional Amendment adding additional qualifications to a federal elected office is not Congress or the States adding additional qualifications to a federal elected office. It is a Constitutional Amendment, which changes the relevant parts of the Constitution. That’s what Constitutional Amendments are supposed to do and that’s why they’re sometimes required.

    I will humor their casuistry this far: “Officer”, and “insurrection or rebellion” as they were understood to mean at the time of ratification of the Fourteenth Amendment.

    nk (bb1548)

  154. @115

    > Or, its really about how NeverTrumpers can’t stop being hyperbolic nincompoops when they’re advocating the “insurrection” premise.

    Maybe?

    I was responding to Kevin’s comment which I read as saying that, even if Trump meets the legal requirements for exclusion, he shouldn’t be excluded because the political system couldn’t survive it.

    This *might be true*. But, if it is, the Republic is *already* dead.

    What you are talking about is challenging the premise — you think Trump doesn’t meet the legal requirements for exclusion, so you’re denying the basis of the hypothetical. That’s fine … but irrelevant to the point i’m making, which is that if you accept the hypothetical that Trump *should be excluded under the law* but nevertheless think that he shouldn’t be excluded because it’s too destabilizing, you’re in fact saying — without acknowledging it — that the rule of law has *already* been replaced by the rule of the mob.

    aphrael (71d87c) — 1/4/2024 @ 7:14 pm

    See my post #80, as I’ve already stated that has Trump MET that threshold, we should absolutely exclude him.

    I don’t believe that the rule of law has *already* been replaced by the rule of the mob.

    whembly (5f7596)

  155. @116

    I still don’t see how the incorporation doctrine has anything to do with the debate on hand.

    > You are completely ignoring Section 5.

    Your interpretation of section 5 implies that the supreme court had no authority to use the fourteenth amendment as the basis for incorporating the bill of rights against the states — because section 5, as applied to section 1, would hold that only Congress could do so, not the courts.

    aphrael (71d87c) — 1/4/2024 @ 7:15 pm

    My Brother In Christ…

    SCOTUS didn’t incorporate the entirety of the 14th Amendment!

    They absolutely did for Section 1, but no where did they incorporate specifically Section 3 and/or 5.

    Because, if your interpretation is infact upheld… the absolute chaos is going to reign. That means, any partisan righty/lefty state can kick off candidates off the ballots for pure partisan reasons.

    Kicking off Trump from the ballot by stretching the 14th Amendment is as untenable as kicking off Joe Biden from the ballot for engaging in “insurrection” at the border.

    whembly (5f7596)

  156. Like I said early in this thread, whembly, I agree with you, but like I also said Congress’s multiple failures to act under the enabling clause ceded the power to the Supreme Court. There ain’t no way the Court is going to give it up, just as there is no way the Congressdorks we have today are going to sit down and codify three quarters of a century’s worth of selective incorporation. It might make some of them late for their fundraising breakfasts.

    nk (bb1548)

  157. @119

    So, I challenge Patterico and others who believes Trump engaged in an “insurrection” to square section 5 [The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article] to the idea that section 3 is “self-executing”.

    whembly (5f7596) — 1/4/2024 @ 8:07 am

    I would agree if it said “The Congress shall have the exclusive power to enforce, by appropriate legislation, the provisions of this article,” but it doesn’t.

    Rip Murdock (94fbbc) — 1/4/2024 @ 7:26 pm

    This is asinine.

    Section 5, Amendment 14 reads in it’s entirety:

    The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    …as Buhduh mentioned
    Article 1, Section 8 begins:

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

    Please note the bolded in both.

    See any differences?

    See any need to include “exclusive”.

    Because, otherwise, here’s what you’re arguing. You’re arguing that since Section 5 in Amendment 14 doesn’t say “exclusive” to Congress…you’re also inferring that some ‘not-Congress’ has the power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…

    I’m pretty sure you don’t mean that.

    whembly (5f7596)

  158. @152

    For a similar reason that the Foreign Emoluments Clause may not apply to a president, same for Section 3 of the 14th Amendment, specifically that a president is not an “officer of the United States”.
    I’m obviously no constitutional scholar, but Blackman-Tillman have some knowledge, and I don’t believe it’s a slam dunk that a president is such an officer under Section 3. The USSC will necessarily have to decide on jurisdiction before getting to “engaged in insurrection”.

    Paul Montagu (d52d7d) — 1/5/2024 @ 7:41 am

    So, “officer of the United States” is a legal term to define appointed positions in government.

    It does seem kind of “muddy” with respect to reading the Constitution/Amendment and it may have been an oversight.

    But, reading the text of Section 3:

    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

    The President/Vice-President isn’t listed.

    Only the “elector of President and Vice-President”, so if the intent was to include the actual President, it’s an awfully strange oversight.

    I think the founders intentionally left of the POTUS/VP, believing that the impeachment process would suffice.

    Additionally, don’t forget, electors of President and Vice-President had more power in the early years of this country (lots of smokey backroom dealings). So, it made sense to include these electors in Section 3.

    whembly (5f7596)

  159. I think they left off the president and vice president with the thought that the people they wanted to stop from holding office would have support coming from only one state or region, or even locality.

    Sammy Finkelman (c2c77e)

  160. 158, This is an additional power, and they were mainly thinking if other portions of the 14th amendment, especially the part about reducing representation in Congress (this was before the 15th amendment)

    There could be anyway some form of enforcing it.

    Sammy Finkelman (c2c77e)

  161. We need a bright standard on insurrection because your guy is “bravely exposing the roots of corruption in our system” and my guy’s behavior is “tantamount to that of slavers wielding weapons of war in secession”.

    steveg (9659e3)

  162. We need people to be honest about “insurrection”

    If Trump had been impeached convicted and disqualified from holding office that would be something undisputable.

    Sammy Finkelman (1d215a)

  163. steveg,

    I recommend The Death of Common Sense by Philip K Howard

    Kevin M (ed969f)

  164. whembly,

    All the textual analysis you can deploy doesn’t solve the problem nk illustrates in his #157. The Court will not overturn decades of precedent in Article XIV cases just to save Donald Trump.

    Now, this doesn’t mean the Court won’t decide that Article 3 is not self-executing. To do that, though, the Court will probably reach back to the Griffin case, which provides:

    There are, indeed, other sections than the third, to the enforcement of which legislation is necessary; but there is no one which more clearly requires legislation in order to give effect to it. The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections. And the final clause of the third section itself is significant. It gives to congress absolute control of the whole operation of the amendment These are its words: “But congress may, by a vote of two-thirds of each house, remove such disability.” Taking the third section then, in its completeness with this final clause, it seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. This construction gives certain effect to the undoubted intent of the amendment to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.

    Case is here: https://law.resource.org/pub/us/case/reporter/F.Cas/0011.f.cas/0011.f.cas.0007.html

    In other words, Judge Chase thinks that various parts of the 14th Amendment need Congressional legislation to implement it, but Section 3 extra speically needs it. Maybe the Supremes can get themselves to this position. My guess, however, that they just won’t want to tackle things that way.

    Appalled (662179)

  165. avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.

    Because, without legislation, the question of whether someone is disqualified or not is decided on only after the fact, and if there is some attempt somewhere to decide thaat before a person is elected or appointed, application will be inconsistent, and unreliable.

    Sammy Finkelman (c2c77e)


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