LOL, NEVER feel sorry for NYY fans, with rare exceptions for non-sport events (I have twice: in 1979 after Munson died and the team was meh, and after 9/11--gone by the time they lost the WS).
To Douthat's comment: isn't the "political" act of prosecuting Trump more one of timing/happenstance? To say it's INHERENTLY political means there's little-to-no chance he'd be prosecuted if he, say, weren't running for president again. Maybe, but I don't think that's obvious. To counter that, wouldn't DISMISSING criminal cases against a former president "because he was the president," be an inherently political act?
I'm suspicious of these One Weird Trick solutions to the Trump problem. I agree with Dan: the way to beat Trump is to beat him.
As for the Section 3 solution, would things be better if the California legislature threw Trump off the ballot? I don't see it. It would be seen as totally partisan and even disenfranchising, given that California gave Trump more votes than any other state in 2020. And would swing states do the same? I have a hard time seeing Wisconsin, Arizona, etc jumping on this bandwagon.
And should this be left to the individual states? I mean, the federal government, in the form of the Senate, already weighed in on whether due to his insurrectionary behavior Trump should be disqualified. You may disagree with the Senate (I sure do), but that's what that body decided. What gives some no doubt left-leaning states greater standing to declare the Senate wrong?
And of course there are the practical obstacles. No Supreme Court is going to intervene in the election, especially as it would be relatively close to Election Day and after one of our two major parties picked Trump as their nominee. And there are court decisions you don't want -- would we really want the Court to establish the precedent implied in giving its blessing to Trump being on the ballot?
"It would be preferable if a state election official, such as a secretary of state, made a preliminary administrative ruling of Trump’s constitutional ineligibility based on Section 3 of the Constitution's 14th amendment and then sought judicial confirmation of this determination in state court. Consistent with due process, Trump — and voters who want him on the ballot — would be entitled to challenge this administrative decision in court. Whichever way the state court ruled could be appealed all the way to the Supreme Court, whose decision would be binding on all the states."
Where better to do this than in the Great State of Massachusetts?
A second 1776 tea party, only this time throwing Trump overboard!!!
I would love to see this brought before the Supreme Court.
I think the problem with the 14th is establishing legally that anything short of secession and firing on a US military base constitutes an insurrection. My thought is that if Trump is found guilty in either DC or Georgia, that would be sufficient to invoke the 14th Amendment. The ban would be immediate on conviction, or in the case of a hung jury with a majority voting to convict. Establishing that this was an insurrection is a preponderance of evidence question, shouldn’t require beyond a reasonable doubt. Even if the conviction gets overturned, I’d leave the ban in place unless the case is dismissed with prejudice, or a retrial returns a not guilty verdict.
The courts could enforce disqualification under the 14th Amendment retroactively, I think. Suppose trump wins the election. Then he appoints cabinet secretaries or agency heads, which the senate confirms. Under Trump’s agency heads, those agencies promulgate regulations or hold adjudications. Aggrieved parties challenge those agency actions in federal court, arguing that the agency head was invalidly appointed because that head was appointed by someone who couldn’t be president and was never president election notwithstanding because he was ineligible to hold the office of president. The courts could slow walk that challenge but eventually they could rule Trump’s presidency invalid, which would take down all his appointments, regulations and presumably bills signed into law.
Alternatively, if trump signed a bill into law, someone might be able to sue over that under an analogy.
In other words, the aggrieved party would argue that they are entitled to a president-appointed agency head for their regulation or adjudication, and because Trump is not president eligible, he could never have so appointed. The courts would then declare the regulation or adjudication invalid, and necessarily have to declare Trump “not president.”
I'm glad the FedSoc crowd is conceding the 14th Amendment supercedes every previous provision in the Constitution. That means they accept the idea that it limits pardon powers if they're used in cases of civil rights Violations, too.
I find it hard to believe that someone won't take Trump's eligibility to court and that would be very interesting. Especially given that it goes to a Federalist Society Friendly Supreme Court and it's Federalists society heavies who say Trump should be ineligible. I feel this whole possibility hasn't been given the publicity it deserves.
I do think the odds are against Trump winning election but there is a huge portion of the population that doesn't care so much about authoritarianism or crimes and only votes based on how the economy is doing, and I'd rather not chance it. The Nazis did successfully gain power through fair elections in Weimar Germany, after all.
LOL, NEVER feel sorry for NYY fans, with rare exceptions for non-sport events (I have twice: in 1979 after Munson died and the team was meh, and after 9/11--gone by the time they lost the WS).
To Douthat's comment: isn't the "political" act of prosecuting Trump more one of timing/happenstance? To say it's INHERENTLY political means there's little-to-no chance he'd be prosecuted if he, say, weren't running for president again. Maybe, but I don't think that's obvious. To counter that, wouldn't DISMISSING criminal cases against a former president "because he was the president," be an inherently political act?
I'm suspicious of these One Weird Trick solutions to the Trump problem. I agree with Dan: the way to beat Trump is to beat him.
As for the Section 3 solution, would things be better if the California legislature threw Trump off the ballot? I don't see it. It would be seen as totally partisan and even disenfranchising, given that California gave Trump more votes than any other state in 2020. And would swing states do the same? I have a hard time seeing Wisconsin, Arizona, etc jumping on this bandwagon.
And should this be left to the individual states? I mean, the federal government, in the form of the Senate, already weighed in on whether due to his insurrectionary behavior Trump should be disqualified. You may disagree with the Senate (I sure do), but that's what that body decided. What gives some no doubt left-leaning states greater standing to declare the Senate wrong?
And of course there are the practical obstacles. No Supreme Court is going to intervene in the election, especially as it would be relatively close to Election Day and after one of our two major parties picked Trump as their nominee. And there are court decisions you don't want -- would we really want the Court to establish the precedent implied in giving its blessing to Trump being on the ballot?
Yup, vote him down.
Excellent article!
"It would be preferable if a state election official, such as a secretary of state, made a preliminary administrative ruling of Trump’s constitutional ineligibility based on Section 3 of the Constitution's 14th amendment and then sought judicial confirmation of this determination in state court. Consistent with due process, Trump — and voters who want him on the ballot — would be entitled to challenge this administrative decision in court. Whichever way the state court ruled could be appealed all the way to the Supreme Court, whose decision would be binding on all the states."
Where better to do this than in the Great State of Massachusetts?
A second 1776 tea party, only this time throwing Trump overboard!!!
I would love to see this brought before the Supreme Court.
I think the problem with the 14th is establishing legally that anything short of secession and firing on a US military base constitutes an insurrection. My thought is that if Trump is found guilty in either DC or Georgia, that would be sufficient to invoke the 14th Amendment. The ban would be immediate on conviction, or in the case of a hung jury with a majority voting to convict. Establishing that this was an insurrection is a preponderance of evidence question, shouldn’t require beyond a reasonable doubt. Even if the conviction gets overturned, I’d leave the ban in place unless the case is dismissed with prejudice, or a retrial returns a not guilty verdict.
The courts could enforce disqualification under the 14th Amendment retroactively, I think. Suppose trump wins the election. Then he appoints cabinet secretaries or agency heads, which the senate confirms. Under Trump’s agency heads, those agencies promulgate regulations or hold adjudications. Aggrieved parties challenge those agency actions in federal court, arguing that the agency head was invalidly appointed because that head was appointed by someone who couldn’t be president and was never president election notwithstanding because he was ineligible to hold the office of president. The courts could slow walk that challenge but eventually they could rule Trump’s presidency invalid, which would take down all his appointments, regulations and presumably bills signed into law.
Alternatively, if trump signed a bill into law, someone might be able to sue over that under an analogy.
In other words, the aggrieved party would argue that they are entitled to a president-appointed agency head for their regulation or adjudication, and because Trump is not president eligible, he could never have so appointed. The courts would then declare the regulation or adjudication invalid, and necessarily have to declare Trump “not president.”
I'm glad the FedSoc crowd is conceding the 14th Amendment supercedes every previous provision in the Constitution. That means they accept the idea that it limits pardon powers if they're used in cases of civil rights Violations, too.
I find it hard to believe that someone won't take Trump's eligibility to court and that would be very interesting. Especially given that it goes to a Federalist Society Friendly Supreme Court and it's Federalists society heavies who say Trump should be ineligible. I feel this whole possibility hasn't been given the publicity it deserves.
I do think the odds are against Trump winning election but there is a huge portion of the population that doesn't care so much about authoritarianism or crimes and only votes based on how the economy is doing, and I'd rather not chance it. The Nazis did successfully gain power through fair elections in Weimar Germany, after all.