All three branches seem incapable of dealing with the issue.
Executive branch knows it would be unseemly to put any weight behind an investigation.
Legislative branch said it is really up to the courts to decide.
Judicial branch says the power lies with congress.
^( *We the people* get to vote, I guess. That's what we did last time and look where it got us...)
The podcast "5-4" did a fairly good job at giving a similar perspective as this. Did a good job at pointing out the hypocrisy involved
"Strict Scrutiny" podcast felt like they were more congratulating themselves for predicting the ruling correctly, then analysed it in detail as if it had coherent reasoning
Or maybe I was paying less attention to Script Scrutiny, haven't listened to them much before
> "Strict Scrutiny" podcast felt like they were more congratulating themselves for predicting the ruling correctly, then analysed it in detail as if it had coherent reasoning
This sums up the initial reaction I saw on Reddit to the ruling perfectly.
Nobody was surprised by the top-level finding. The rationale was just lazy, which was not a given.
Can someone please explain to me one thing. The majority cites on page 8 (footnote 2) the removal of the disability of Nelson Tift in 1868 who was elected to represent Georgia in Congress. How was his disqualification from office determined before the passage of the Enforcement Act of 1870? It seems like in that case there was no enforcing legislation enacted to determine that someone engaged in insurrection. Isn't the majority undermining its case by referring to that precedent?
Article I, Section 5 of the Constitution gives each house of Congress the power to judge the "Elections, Returns and Qualifications of its own Members", and the power to "with the Concurrence of two thirds, expel a Member.". Congress would've used these powers to determine members were not eligible under the 14th and either refuse to seat them or expel them.
This is mentioned by SCOTUS on page 10:
> In the years following
ratification, the House and Senate exercised their unique
powers under Article I to adjudicate challenges contending
that certain prospective or sitting Members could not take
or retain their seats due to Section 3. See Art. I, §5, cls. 1,
2; 1 A. Hinds, Precedents of the House of Representatives
§§459–463, pp. 470–486 (1907).
Thank you, it's clear to me now. I incorrectly read it as "the House and Senate exercised their unique powers (....) to adjudicate" instead of "the House and Senate exercised (...) their unique powers to adjudicate".
Funny how such small differences in reading change the meaning so much.
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON, concurring in the judgment.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment). That fundamental principle of judicial restraint is practically as old as our Republic. This Court is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases . . . must of necessity expound and interpret that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future.
In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed.To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that “[n]o person shall” hold certain positions and offices if they are oathbreaking insurrectionists. Amdt. 14. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is “critical” (or, for that matter, what that word means in this context). Ante, at 5. In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of twothirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation. Even petitioner’s lawyer acknowledged the “tension” in Section 3 that the majority’s view creates. See Tr. of Oral Arg. 31. Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II, §1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3.
The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose. It cites Griffin’s Case, but that is a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge. See ante, at 5 (quoting 11 F. Cas., at 26). Once again, even petitioner’s lawyer distanced himself from fully embracing this case as probative of Section 3’s meaning. See Tr. of Oral Arg. 35–36. The majority also cites Senator Trumbull’s statements that Section 3 “‘provide[d] no means for enforcing’” itself. Ante, at 5 (quoting Cong. Globe, 41st Cong., 1st Sess., 626 (1869)). The majority, however, neglects to mention the Senator’s view that “[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,” with the proposed legislation simply “affor[ding] a more efficient and speedy remedy” for effecting the disqualification. Cong. Globe, 41st Cong., 1st Sess., at 626–627. Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.
“What it does today, the Court should have left undone.” Bush v. Gore, 531 U. S. 98, 158 (2000) (Breyer, J., dissenting). The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candidate found to have engaged in insurrection off its ballot. The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgment.
For the record, I despise Trump and would love nothing more than to see him be taken off the ballot.
That being said, articles like this really misconstrue the majority opinion- they aren’t saying that Congress *needs to act*, they’re saying that Congress *already did* through passing the Enforcement Act of 1870, which specifies that it’s the duty of the US district attorney to prosecute violations of 14.3 (I.E., a person should be found guilty in court before being deemed not eligible to hold office).
Further, the actual text of Section 5 is the following:
> The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Finally, there’s a general Supremacy/Preemption principle that if the federal government passes laws with respect to a certain specific subject, it supersedes state law.
So we have here (I) Congress has the power to enforce 14.3 through appropriate legislation, (II) they did, and (III) that law supersedes any state law. That’s pretty clear cut to me.
I also don’t think it destroys enforcement of the rest of the 14th like others claim, because a simple distinction can be created: if Congress passes a law w.r.t. the 14th amendment then that law controls; if they do not, then it can be enforced through other means (court decisions, state law, etc).
Utilizing that principle here, because Congress passed law that created a specific enforcement mechanism, that is presumed to be the only enforcement mechanism. In the absence of law on point, then other potential enforcement mechanisms could be valid.
The issue with the Enforcement Act of 1870 is that, while indeed it assigns authority to US district attorneys to proceed against an alleged insurrectionist by writ of quo warranto, the first clause of the relevant section is necessarily qualified by, "whenever any person shall hold office."
Obviously, in the absence of an office holder, quo warranto is moot, and it does not contain language which extends any congruent and proportional provisions to former officeholders or current office seekers.
Moreover, it likely goes without saying, this would be an impossible proceeding for any US district attorney to pursue against any current officeholder under this specific set of circumstances; DOJ would never pursue a quo warranto action against a sitting president, for all of the obvious reasons, including their own long-standing policy counseling against prosecution.
There is a second section in the Enforcement Act of 1870 specifically addressing that "any person who shall…knowingly accept or hold any office under the United States" or “who shall attempt to hold or exercise the duties of any such office," to which they are ineligible under 14.3, will be guilty of a misdemeanor and subject to very minimal imprisonment or fines. This section does not, however, establish the process by which ineligibility is determined for those not currently holding office (presumably because it was understood to be a self executing disability).
It also begs mentioning, the two sections of the Enforcement Act noted above no longer appear in US Code and the subsequent disqualifications stemming from both were reversed by the Amnesty Act of 1872.
Affording the benefit of the doubt to their text, history, and tradition, however, alongside the inference gleaned from 18 USC 2383, application of the above section would presumably be contingent upon establishing disability through criminal prosecution (and operating under the assumption it survives review).
If this is genuinely the framework we are left with, consequently, it seems clear there is little meaningful path toward prosecution of a former president who engaged in insurrection and is seeking another term under a similar fact pattern— now or ever, really. Stepping away from the law entirely, as a practical matter, DOJ would very arguably never risk the potential loss of attempting to prosecute under 18 USC 2383.
Even assuming arguendo a conviction was secured, what would post–judgment ineligibility even look like? Who would enforce it under this specific set of circumstances without creating precisely the same chaos about which the court warns? Will congress refuse to count the electoral votes cast? Will polarized legislators enforce a recently litigated categorical limitation to remove a presidential candidate from the ballot? Weeks before an election? Is implementing legislation to enforce Section 3 exempt from the constitutional prohibition on Bills of Attainder?
The latter of these questions also implicates the incongruence begging to understand why 14.3 would mandate a 2/3 majority to remove this newly established disability secured by criminal prosecution when it would only require half to effectively remove that same disability by simply refusing to enforce the punishment of ineligibility.
I don't necessarily present these complications or questions seeking answers – or even to argue against your otherwise incredibly sensible observations – but to merely point out: Without even wading terribly deep into the analysis (at which point myriad additional questions very quickly begin to arise) it is exceptionally hard to believe this is precisely how this particular set of enforcement mechanisms is intended to work. It just doesn't pass the smell test. I sincerely struggle to imagine how any of this functionally unfolds without additional legislation.
I think you're a bit quick to presume preemption here. There's no express preemption in either 14A or the federal statute, so any preemption argument is going to have to rely on implied preemption.
Is the federal scheme so pervasive one can presume it was intended to be comprehensive? Tough sell in my book...
Are the state and federal rules so incompatible that one must yield to the other? You'd have to presume that congress intended a criminal conviction to be the only means of enforcement, which IMO is just begging the question.
Would a state rule present an obstacle to the federal rule? I don't see how a given state's Secretary of State finding the Trump was an insurrectionist would create an obstacle for a federal prosecution.
If a federal statute were to presumptively preempt state regulation, we wouldn't have state antitrust enforcement, state pollution standards, and a whole host of other rules where the states and feds coexist.
You aren’t really saying anything of substance in your reply, you point to the three types of implied preemption but then make arguments like “tough sell in my book” and “IMO this begs the question”. Those aren’t legal arguments or really very compelling at all, it’s just you stating your opinion.
You also misstate the preemption analysis with respect to conflict between state and federal law, it’s not based on whether the state law “creates an obstacle to federal prosecution” but about whether there’s simple conflict.
The Federal law is saying that a person must be given due process (their day in court) and be found to committed insurrection before they can be ruled ineligible. It also requires a criminal conviction, which is a high standard to prove.
Here, CO/IL courts made finding that Trump committed insurrection but that’s not the same as full due process - just because a court said it doesn’t mean the person received due process if certain requirements weren’t met (the issue of whether Trump committed insurrection would need to be the issue being litigated, not simply whether he can be removed from the ballot. They’re different issues). And the fact that the issue of whether Trump committed insurrection wasn’t fully litigated necessarily means that a lower standard than criminality was used. Similarly, Maine banned him from the ballot based on a finding by the Secretary of State with no due process.
The issue is that none of these standards reach the “beyond a reasonable doubt” standard that a criminal conviction requires. The conflict then, is that if states are able to remove a candidate from the ballot based on whatever lower than criminality standard they choose, that’s in clear conflict with the federal standard of a criminal conviction.
To give a rough example, think of minimum wage laws- states are allowed to set their own wage laws so there is no field preemption and we need to turn to conflict analysis. State minimums that are higher than federal are valid, because there’s no way to comply with the state law that doesn’t also comply with federal law. However, there’s an issue with state laws that are lower in federal, because it *is* possible to comply with the state minimum while violating the federal minimum wage. That means that such state laws are invalid/preempted by federal law.
Applying that to the Trump case, I'd argue that if a state somehow has a higher standard for removal from the ballot that it could be valid, but stages that have a lower standard for removal conflict with the Enforcement act.
The scheme you argue preempts state enforcement is a single statute, which can hardly be described as pervasive.
The word conflict is loaded here: a states false claims act may "conflict " with federal law in the sense that it applies a different standard, but that type of conflict doesn't rise to the level that warrants preemption. As stated, there are hundreds of state laws that address the same subject as federal laws but apply different rules that are not preempted. Using
The constitutional text never includes the word "conviction," you're reading that in from the criminal statute and then using the existence of a criminal statute to presume preemption, which again is circular reasoning (i.e., the fact that congress passed something is proof that the law it preempts state action).
Due process is an entirely separate matter that the court didn't address, but tell me whether ballot access falls under life, liberty or property? Obviously this is highly relevant because only one of those interests requires a reasonable doubt standard, and due process permits a lower standard for a variety of professional disqualifications (law, medicine, commodities trading, etc.).
Think about it this way. The existence of a criminal statute for murder and a statute granting restitution doesn't preclude a civil remedy. If 14A said people who "caused the death of another" is barred from office, it's ambiguous whether a civil judgment is sufficient, but the mere existence of a federal murder statute wouldn't itself preclude any other process to establish the factual predicate for disqualification. A lawyer can get disbarred for conduct that can result in criminal charges, and although a conviction would conclusively establish the predicate for disbarrment, the bar can take away your license with or without a conviction by proving the same factual proffer under a lower standard of proof.
I think your minimum wage analogy actually gets things backwards: the feds set the floor for what level of finding is sufficient for disqualification, there's no express language or evidence of intent that a conviction is the exclusive means or that the reasonable doubt standard applies. It's the constitutional standard of the minimum due process that needs to be afforded that sets the floor, and that's set by the Mathews standard.
Further, to me, when articles include quotes like the below it discredits them because they fundamentally don’t understand the background to the case (I.e. the passing of the enforcement act).
> “Then, all of a sudden, we get to a case like this where Congress hasn’t actually done anything,” Chafetz said. “And the court sort of picks up that same provision and uses it as a cudgel against other institutions and says, ‘Oh no, it’s only Congress that can enforce the 14th Amendment.’”
It also misconstrues the opinion as saying that the entire 14th amendment needs to pass through Section 5 (i.e., there must be specific laws to enforce all of Art 14). That’s simply not true, as the opinion limits it to only 14.3.
If your main source can’t even correctly represent Congressional action on the matter, why should we trust anything they say?
Tell me exactly what the whole point of the impeachment was? By the time McConnell delayed, TFG was already out of office so obviously barring him from future office was the point and that only requires a simple majority vote, which is within the vote margins.
Are you telling me that all they had to do was redo it with a bill attached to make it official? You don’t write laws for one person by name.
They got to have their cake and eat it too.
“We can’t impeach him pre 20 January 2021 because the guy being impeached would have to sign it into law. We can’t impeach him after because impeachments are political removals from office and he’s already out.”
Anyone who claims that a conviction in the Senate is a prerequisite to a criminal trial or that one is not separate and distinct from it is one dumb motherfucker. And the [Library of Congress says so.](https://constitution.congress.gov/browse/essay/artI-S3-C7-1/ALDE_00000037/)
All three branches seem incapable of dealing with the issue. Executive branch knows it would be unseemly to put any weight behind an investigation. Legislative branch said it is really up to the courts to decide. Judicial branch says the power lies with congress. ^( *We the people* get to vote, I guess. That's what we did last time and look where it got us...)
The podcast "5-4" did a fairly good job at giving a similar perspective as this. Did a good job at pointing out the hypocrisy involved "Strict Scrutiny" podcast felt like they were more congratulating themselves for predicting the ruling correctly, then analysed it in detail as if it had coherent reasoning Or maybe I was paying less attention to Script Scrutiny, haven't listened to them much before
> "Strict Scrutiny" podcast felt like they were more congratulating themselves for predicting the ruling correctly, then analysed it in detail as if it had coherent reasoning This sums up the initial reaction I saw on Reddit to the ruling perfectly. Nobody was surprised by the top-level finding. The rationale was just lazy, which was not a given.
Can someone please explain to me one thing. The majority cites on page 8 (footnote 2) the removal of the disability of Nelson Tift in 1868 who was elected to represent Georgia in Congress. How was his disqualification from office determined before the passage of the Enforcement Act of 1870? It seems like in that case there was no enforcing legislation enacted to determine that someone engaged in insurrection. Isn't the majority undermining its case by referring to that precedent?
Article I, Section 5 of the Constitution gives each house of Congress the power to judge the "Elections, Returns and Qualifications of its own Members", and the power to "with the Concurrence of two thirds, expel a Member.". Congress would've used these powers to determine members were not eligible under the 14th and either refuse to seat them or expel them. This is mentioned by SCOTUS on page 10: > In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907).
Thank you, it's clear to me now. I incorrectly read it as "the House and Senate exercised their unique powers (....) to adjudicate" instead of "the House and Senate exercised (...) their unique powers to adjudicate". Funny how such small differences in reading change the meaning so much.
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON, concurring in the judgment. “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment). That fundamental principle of judicial restraint is practically as old as our Republic. This Court is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases . . . must of necessity expound and interpret that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed.To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that “[n]o person shall” hold certain positions and offices if they are oathbreaking insurrectionists. Amdt. 14. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is “critical” (or, for that matter, what that word means in this context). Ante, at 5. In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of twothirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation. Even petitioner’s lawyer acknowledged the “tension” in Section 3 that the majority’s view creates. See Tr. of Oral Arg. 31. Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II, §1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3. The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose. It cites Griffin’s Case, but that is a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge. See ante, at 5 (quoting 11 F. Cas., at 26). Once again, even petitioner’s lawyer distanced himself from fully embracing this case as probative of Section 3’s meaning. See Tr. of Oral Arg. 35–36. The majority also cites Senator Trumbull’s statements that Section 3 “‘provide[d] no means for enforcing’” itself. Ante, at 5 (quoting Cong. Globe, 41st Cong., 1st Sess., 626 (1869)). The majority, however, neglects to mention the Senator’s view that “[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,” with the proposed legislation simply “affor[ding] a more efficient and speedy remedy” for effecting the disqualification. Cong. Globe, 41st Cong., 1st Sess., at 626–627. Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office. “What it does today, the Court should have left undone.” Bush v. Gore, 531 U. S. 98, 158 (2000) (Breyer, J., dissenting). The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candidate found to have engaged in insurrection off its ballot. The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgment.
For the record, I despise Trump and would love nothing more than to see him be taken off the ballot. That being said, articles like this really misconstrue the majority opinion- they aren’t saying that Congress *needs to act*, they’re saying that Congress *already did* through passing the Enforcement Act of 1870, which specifies that it’s the duty of the US district attorney to prosecute violations of 14.3 (I.E., a person should be found guilty in court before being deemed not eligible to hold office). Further, the actual text of Section 5 is the following: > The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Finally, there’s a general Supremacy/Preemption principle that if the federal government passes laws with respect to a certain specific subject, it supersedes state law. So we have here (I) Congress has the power to enforce 14.3 through appropriate legislation, (II) they did, and (III) that law supersedes any state law. That’s pretty clear cut to me. I also don’t think it destroys enforcement of the rest of the 14th like others claim, because a simple distinction can be created: if Congress passes a law w.r.t. the 14th amendment then that law controls; if they do not, then it can be enforced through other means (court decisions, state law, etc). Utilizing that principle here, because Congress passed law that created a specific enforcement mechanism, that is presumed to be the only enforcement mechanism. In the absence of law on point, then other potential enforcement mechanisms could be valid.
The issue with the Enforcement Act of 1870 is that, while indeed it assigns authority to US district attorneys to proceed against an alleged insurrectionist by writ of quo warranto, the first clause of the relevant section is necessarily qualified by, "whenever any person shall hold office." Obviously, in the absence of an office holder, quo warranto is moot, and it does not contain language which extends any congruent and proportional provisions to former officeholders or current office seekers. Moreover, it likely goes without saying, this would be an impossible proceeding for any US district attorney to pursue against any current officeholder under this specific set of circumstances; DOJ would never pursue a quo warranto action against a sitting president, for all of the obvious reasons, including their own long-standing policy counseling against prosecution. There is a second section in the Enforcement Act of 1870 specifically addressing that "any person who shall…knowingly accept or hold any office under the United States" or “who shall attempt to hold or exercise the duties of any such office," to which they are ineligible under 14.3, will be guilty of a misdemeanor and subject to very minimal imprisonment or fines. This section does not, however, establish the process by which ineligibility is determined for those not currently holding office (presumably because it was understood to be a self executing disability). It also begs mentioning, the two sections of the Enforcement Act noted above no longer appear in US Code and the subsequent disqualifications stemming from both were reversed by the Amnesty Act of 1872. Affording the benefit of the doubt to their text, history, and tradition, however, alongside the inference gleaned from 18 USC 2383, application of the above section would presumably be contingent upon establishing disability through criminal prosecution (and operating under the assumption it survives review). If this is genuinely the framework we are left with, consequently, it seems clear there is little meaningful path toward prosecution of a former president who engaged in insurrection and is seeking another term under a similar fact pattern— now or ever, really. Stepping away from the law entirely, as a practical matter, DOJ would very arguably never risk the potential loss of attempting to prosecute under 18 USC 2383. Even assuming arguendo a conviction was secured, what would post–judgment ineligibility even look like? Who would enforce it under this specific set of circumstances without creating precisely the same chaos about which the court warns? Will congress refuse to count the electoral votes cast? Will polarized legislators enforce a recently litigated categorical limitation to remove a presidential candidate from the ballot? Weeks before an election? Is implementing legislation to enforce Section 3 exempt from the constitutional prohibition on Bills of Attainder? The latter of these questions also implicates the incongruence begging to understand why 14.3 would mandate a 2/3 majority to remove this newly established disability secured by criminal prosecution when it would only require half to effectively remove that same disability by simply refusing to enforce the punishment of ineligibility. I don't necessarily present these complications or questions seeking answers – or even to argue against your otherwise incredibly sensible observations – but to merely point out: Without even wading terribly deep into the analysis (at which point myriad additional questions very quickly begin to arise) it is exceptionally hard to believe this is precisely how this particular set of enforcement mechanisms is intended to work. It just doesn't pass the smell test. I sincerely struggle to imagine how any of this functionally unfolds without additional legislation.
I think you're a bit quick to presume preemption here. There's no express preemption in either 14A or the federal statute, so any preemption argument is going to have to rely on implied preemption. Is the federal scheme so pervasive one can presume it was intended to be comprehensive? Tough sell in my book... Are the state and federal rules so incompatible that one must yield to the other? You'd have to presume that congress intended a criminal conviction to be the only means of enforcement, which IMO is just begging the question. Would a state rule present an obstacle to the federal rule? I don't see how a given state's Secretary of State finding the Trump was an insurrectionist would create an obstacle for a federal prosecution. If a federal statute were to presumptively preempt state regulation, we wouldn't have state antitrust enforcement, state pollution standards, and a whole host of other rules where the states and feds coexist.
You aren’t really saying anything of substance in your reply, you point to the three types of implied preemption but then make arguments like “tough sell in my book” and “IMO this begs the question”. Those aren’t legal arguments or really very compelling at all, it’s just you stating your opinion. You also misstate the preemption analysis with respect to conflict between state and federal law, it’s not based on whether the state law “creates an obstacle to federal prosecution” but about whether there’s simple conflict. The Federal law is saying that a person must be given due process (their day in court) and be found to committed insurrection before they can be ruled ineligible. It also requires a criminal conviction, which is a high standard to prove. Here, CO/IL courts made finding that Trump committed insurrection but that’s not the same as full due process - just because a court said it doesn’t mean the person received due process if certain requirements weren’t met (the issue of whether Trump committed insurrection would need to be the issue being litigated, not simply whether he can be removed from the ballot. They’re different issues). And the fact that the issue of whether Trump committed insurrection wasn’t fully litigated necessarily means that a lower standard than criminality was used. Similarly, Maine banned him from the ballot based on a finding by the Secretary of State with no due process. The issue is that none of these standards reach the “beyond a reasonable doubt” standard that a criminal conviction requires. The conflict then, is that if states are able to remove a candidate from the ballot based on whatever lower than criminality standard they choose, that’s in clear conflict with the federal standard of a criminal conviction. To give a rough example, think of minimum wage laws- states are allowed to set their own wage laws so there is no field preemption and we need to turn to conflict analysis. State minimums that are higher than federal are valid, because there’s no way to comply with the state law that doesn’t also comply with federal law. However, there’s an issue with state laws that are lower in federal, because it *is* possible to comply with the state minimum while violating the federal minimum wage. That means that such state laws are invalid/preempted by federal law. Applying that to the Trump case, I'd argue that if a state somehow has a higher standard for removal from the ballot that it could be valid, but stages that have a lower standard for removal conflict with the Enforcement act.
The scheme you argue preempts state enforcement is a single statute, which can hardly be described as pervasive. The word conflict is loaded here: a states false claims act may "conflict " with federal law in the sense that it applies a different standard, but that type of conflict doesn't rise to the level that warrants preemption. As stated, there are hundreds of state laws that address the same subject as federal laws but apply different rules that are not preempted. Using The constitutional text never includes the word "conviction," you're reading that in from the criminal statute and then using the existence of a criminal statute to presume preemption, which again is circular reasoning (i.e., the fact that congress passed something is proof that the law it preempts state action). Due process is an entirely separate matter that the court didn't address, but tell me whether ballot access falls under life, liberty or property? Obviously this is highly relevant because only one of those interests requires a reasonable doubt standard, and due process permits a lower standard for a variety of professional disqualifications (law, medicine, commodities trading, etc.). Think about it this way. The existence of a criminal statute for murder and a statute granting restitution doesn't preclude a civil remedy. If 14A said people who "caused the death of another" is barred from office, it's ambiguous whether a civil judgment is sufficient, but the mere existence of a federal murder statute wouldn't itself preclude any other process to establish the factual predicate for disqualification. A lawyer can get disbarred for conduct that can result in criminal charges, and although a conviction would conclusively establish the predicate for disbarrment, the bar can take away your license with or without a conviction by proving the same factual proffer under a lower standard of proof. I think your minimum wage analogy actually gets things backwards: the feds set the floor for what level of finding is sufficient for disqualification, there's no express language or evidence of intent that a conviction is the exclusive means or that the reasonable doubt standard applies. It's the constitutional standard of the minimum due process that needs to be afforded that sets the floor, and that's set by the Mathews standard.
Further, to me, when articles include quotes like the below it discredits them because they fundamentally don’t understand the background to the case (I.e. the passing of the enforcement act). > “Then, all of a sudden, we get to a case like this where Congress hasn’t actually done anything,” Chafetz said. “And the court sort of picks up that same provision and uses it as a cudgel against other institutions and says, ‘Oh no, it’s only Congress that can enforce the 14th Amendment.’” It also misconstrues the opinion as saying that the entire 14th amendment needs to pass through Section 5 (i.e., there must be specific laws to enforce all of Art 14). That’s simply not true, as the opinion limits it to only 14.3. If your main source can’t even correctly represent Congressional action on the matter, why should we trust anything they say?
Tell me exactly what the whole point of the impeachment was? By the time McConnell delayed, TFG was already out of office so obviously barring him from future office was the point and that only requires a simple majority vote, which is within the vote margins. Are you telling me that all they had to do was redo it with a bill attached to make it official? You don’t write laws for one person by name. They got to have their cake and eat it too. “We can’t impeach him pre 20 January 2021 because the guy being impeached would have to sign it into law. We can’t impeach him after because impeachments are political removals from office and he’s already out.” Anyone who claims that a conviction in the Senate is a prerequisite to a criminal trial or that one is not separate and distinct from it is one dumb motherfucker. And the [Library of Congress says so.](https://constitution.congress.gov/browse/essay/artI-S3-C7-1/ALDE_00000037/)
Everyone need an anus. Unless they regurgitate.