Why Trump should be disqualified - Legal arguments only

Author: Double_R

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#31
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@oromagi
I think a legal criminal conviction of insurrection or similar treason likewise automatically disqualifies any officer so sworn. In spite of one Congressional finding and two findings by Justices of civil courts, I do not think that the question of Trump's insurrection has yet met the standard of "proven" guilty, whatever my personal convictions.
What did you think about my point that because there is no official proceeding designated to deal with this amendment it becomes self executing? Essentially, what you're arguing is that the only outcome which can satisfy such judgement is for an inserectionist to be found guilty beyond a reasonable doubt in a court of law. That standard not only seems wholly inappropriate given what's at steak, is also not what the constitution says and is very much at odds with the clear intentions of the amendment.
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@Double_R
What did you think about my point that because there is no official proceeding designated to deal with this amendment it becomes self executing?
Section 5, as you noted, states that Congress - not a court, not a Secretary of State, not the voters - Congress has the power to enforce ... the provisions of the 14th. Nowhere did it say that if Congress doesn't act, the power transfers to the States to enforce the provision. 

Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

‘‘The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratoryof the relationship between the national and state governments asit had been established by the Constitution before the amendmentor that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, andthat the states might not be able to exercise fully their reservedpowers."

Sec 5 of the 14th delegates to Congress the powers to enforce the 14th. That power is retained by Congress, not surrendered by Congress, even if they do not act accordingly, that inaction =/= surrender. 
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#33
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Sec 5 of the 14th delegates to Congress the powers to enforce the 14th. That power is retained by Congress, not surrendered by Congress, even if they do not act accordingly, that inaction =/= surrender. 
Which is why when I addressed this very point in the OP I highlighted the phrase "by appropriate legislation". If the intention was to give Congress full power to enforce however they choose then this language would not have been in there. Section 5 made clear by my understanding that the means by which Congress had this power was not unlimited.

Moreover, and as I explained, the last sentence of Section 3 also appears to contradict this as it states that Congress has the ability to override any disqualification judgement resulting from this amendment by a 2/3rds majority. Again, if Congress was intended as the sole arbiter of this provision why would they need to be given the power to override themselves?
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#34
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@Sam_Flynn
Forgot to ping you, see above.
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@Double_R
Let me repeat this since you dropped it since it has a direct effect on substantiating my argued position:

Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

‘‘The amendment states but a truism that all is retained which has not been surrendered.

Section 5, again, says Congress "shall have" the "power" to "enforce" the provisions of the 14th. The "by appropriate legislation" tells Congress (and us) how they may execute their power. It does not tell Congress (or us) that if they do not act, then said power is transferred to the states. 

The last sentence of Sec 3 merely implies that if they are contemplating pushing forward with legislation, but 2/3rd majority rejects said proposed legislation, then the disability is lifted. 
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 It does not tell Congress (or us) that if they do not act, then said power is transferred to the states. 
Correct, this is why the Biden admin is suing Texas for enforcing federal immigration laws because Biden did not act.
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#37
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@Sam_Flynn
Section 5, again, says Congress "shall have" the "power" to "enforce" the provisions of the 14th. The "by appropriate legislation" tells Congress (and us) how they may execute their power. It does not tell Congress (or us) that if they do not act, then said power is transferred to the states. 
So as I addressed in the OP, your interpretation of it is that absent any appropriated legislation by Congress, Section 3 of the 14th amendment essentially doesn't exist.

I'm no constitutional scholar so I can't say whether that's right or wrong, but I get the sense that this would be news to the framers.

The last sentence of Sec 3 merely implies that if they are contemplating pushing forward with legislation, but 2/3rd majority rejects said proposed legislation, then the disability is lifted. 
That makes no sense. If 2/3rds of Congress opposes any legislation it would never pass in the first place. 

Again, you're arguing that the purpose of that last sentence is to "give Congress the power" to override itself.
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@<<<Sam_Flynn>>>
 It does not tell Congress (or us) that if they do not act, then said power is transferred to the states. 
Correct, this is why the Biden admin is suing Texas for enforcing federal immigration laws because Biden did not act.
No, TX made their own state law to circumvent the matter, and an entirely different issue (red herring).
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@<<<Sam_Flynn>>>
Section 5, again, says Congress "shall have" the "power" to "enforce" the provisions of the 14th. The "by appropriate legislation" tells Congress (and us) how they may execute their power. It does not tell Congress (or us) that if they do not act, then said power is transferred to the states. 
So as I addressed in the OP, your interpretation of it is that absent any appropriated legislation by Congress, Section 3 of the 14th amendment essentially doesn't exist.

I'm no constitutional scholar so I can't say whether that's right or wrong, but I get the sense that this would be news to the framers.
First and foremost, that is not my interpretation at all. 
If no one committed an act of any crime (doesn't matter which one) on the books anymore, does that mean that the law against any one of those crimes not committed anymore "essentially doesn't exist"? Of course not. The law is still there for [IF] and [WHEN] someone does.
The 14th Sec 3 doesn't cease to exist, it's still written within the Bill of Rights like every other enumerated right therein. 

Secondly, you are correct. You are no constitutional scholar. 
The framers didn't write the 14th. Republican John Bingham was considered the father of the 14th Amendment. 


At this link (above), hover the mouse over this sentence and the legislative historical legal analysis provided clearly states: This language ensured that Congress would have enforcement powers, paralleling language used in the 13th Amendment."
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What did you think about my point that because there is no official proceeding designated to deal with this amendment it becomes self executing?
  • I'm uncertain.  Can you provide a couple of  relevant, convincing precedents for self-executing legislation?
Essentially, what you're arguing is that the only outcome which can satisfy such judgement is for an inserectionist to be found guilty beyond a reasonable doubt in a court of law.
  • Or a Congresssional act.  Either of those would satisfy due process by my sensibility.
That standard not only seems wholly inappropriate given what's at steak, is also not what the constitution says and is very much at odds with the clear intentions of the amendment.
  • I agree that the Constitution does not demand that standard and that Civil War precedent never applied that standard. I agree that the stakes are high- democracy itself as well as our superpower reputation.  I think we agree that the Constitution is a little vague and precedent scarce.   It is because the stakes are so high that the highest standards of evidence should apply to any punishment applied to a candidate representing one fifth of the people, even if that fifth is objectively  the least deserviing of the American franchise.. The most convincing and damning tactic for ending MAGA is to win a one or two humiliating landslide elections that drive the facists and opportunist haters back into the closet for another generation.  Our civitas is strongest when the law is laid by clear national majorities.

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@oromagi
The Office of the President of the United States is both civil and military, 
No, it is not.
It is an Executive position, the lead role of the "Executive" branch of government. 
The Office oversees civil and military, it is not of either. 
POTUS is not an officer of the United States either. 

There is a recent Supreme Court opinion discussing the scope of the Constitution's "Officers of the United States"-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010), Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" Rather, "officers of the United States" are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an "officer of the United States."

#42
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It follows that the President, who is an elected official, is not an "officer of the United States."
What are you smokin? 

The office of the President(and Vice President) is certainly an office. That’s why they take an Oath of office. You are a dummy.

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."
Around noon, the president-elect recites the following oath, in accordance with Article II, Section I of the U.S. Constitution:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."



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Wikipedia:

 it is clear that during the 19th century, the President of the United States was considered an officer of the United States by the public because the original public meaning of “officer” is much broader than modern doctrine assumes— encompassing any government official with responsibility for an ongoing governmental duty. [23] In the case of K&D LLC v. Trump Old Post Office, LLC, 951 F. 3d 503, President Trump successfully argued that the U.S. President qualifies as an Officer of the United States, citing 28 U.S.C. § 1442(a)(1). The court's agreed, stating this statute permitted President Trump, in his capacity as an "officer... of the United States", to remove the state suit relating to duties of his office to federal court.[24]

Since Trump has benefitted financially from insisting that he is an officer of the United States, justice  now demands that Trump either adhere to his previous position or else refund all the profits resulting from his earlier, successful claim that the President is an officer of the United States.
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#44
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@Sam_Flynn
This language ensured that Congress would have enforcement powers, paralleling language used in the 13th Amendment."
And Congress never appropriated any legislation enforcing the outlaw of slavery, so under your legal theory slavery was essentially still legal in the United States until 2015 when the modern slavery act was passed.

This isn’t a serious contention. You're treating the language as if Congress was intended to be some sort of tribunal to determine whether the amendment had been violated. Their job is to pass laws, it's up to the judges to sort out whether those laws are violated. If Congress passes no further laws then the judges are forced to work with whatever has been passed. That's the way law in this country has worked for centuries.
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@oromagi
Can you provide a couple of  relevant, convincing precedents for self-executing legislation?
The disqualification of any presidential candidate under 35 or not born in the United States.

Essentially, what you're arguing is that the only outcome which can satisfy such judgement is for an inserectionist to be found guilty beyond a reasonable doubt in a court of law. 
  • Or a Congresssional act.
What act would that be? The only process Congress has at its disposal to determine whether someone is guilty of an act is impeachment, and I went on about that at length in the OP.

The most convincing and damning tactic for ending MAGA is to win a one or two humiliating landslide elections that drive the facists and opportunist haters back into the closet for another generation.
I agree with this sentiment entirely, I really do wish this wasn't what we would be debating in an election year. But the constitution with all is provisions exist for a reason, if the best thing for a society to do is whatever the majority wants it would have no purpose. The whole idea is that we follow it regardless of whatever we deem to be best for the moment.
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@<<<Sam_Flynn>>>
This language ensured that Congress would have enforcement powers, paralleling language used in the 13th Amendment."
And Congress never appropriated any legislation enforcing the outlaw of slavery, so under your legal theory slavery was essentially still legal in the United States until 2015 when the modern slavery act was passed.

This isn’t a serious contention. You're treating the language as if Congress was intended to be some sort of tribunal to determine whether the amendment had been violated. Their job is to pass laws, it's up to the judges to sort out whether those laws are violated. If Congress passes no further laws then the judges are forced to work with whatever has been passed. That's the way law in this country has worked for centuries.
*Facepalm*

That bolded statement isn't mine; it was provided by the source as the legal analysis of the highlighted provision of Sec 5. It's a legal analysis, so it is a serious contention.

Once again you prove you are definitely no constitutional (or legal) scholar. 

You clearly do not comprehend what an enabling clause is, it's intent and purpose, and how it is utilized. The Amendment itself IS the Constitutional (Supreme) Law of the land. Federal statutory legislation is not needed, until needed. When needed is when a State passes its own laws in violation of the Constitution, like TX subverting federal immigration statutes and Constitutional law. OR Congress can legislate laws to enforce the Amendment(s) via punishment/penalties upon those who violate the Amendments. 


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The Amendment itself IS the Constitutional (Supreme) Law of the land
Agreed, that's why we have judges who can decide whether the law is being followed

Federal statutory legislation is not needed,
Yes, that's my point which you have been arguing against

until needed. When needed is when a State passes its own laws in violation of the Constitution
Yes, and if we've reached that point then it's time for Congress to pass legislation explaining how the 14th section 3 is adjudicated. Until then, it's up to the courts to sort out.

That bolded statement isn't mine; it was provided by the source as the legal analysis of the highlighted provision of Sec 5. It's a legal analysis, so it is a serious contention.
I didn't imply the bolded section was your words nor was it the contention I was talking about. I was referring to your argument - that only Congress can enforce the 14th amendment - that was not a serious contention. The bolded legal analysis doesn't contradict that because it doesn't argue that Congress is exclusive in this authority.
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The Amendment itself IS the Constitutional (Supreme) Law of the land
Agreed, that's why we have judges who can decide whether the law is being followed
ONLY if someone raises a federal question in federal court. If they do not, then each Amendment stands on its own merits as is. In other words, it is followed as it is written and only enforced as annotated. I made that clear citing the 10th Amendment. The 14th does not abdicate the power of enforcement to anyone, any court, or any government body other than the United States Congress. Their inaction is not a call for action by a lesser authority not granted that authority to enforce it. Period.

Federal statutory legislation is not needed,
Yes, that's my point which you have been arguing against
NO, I have not been arguing against it since I've been affirming it all along.

until needed. When needed is when a State passes its own laws in violation of the Constitution
Yes, and if we've reached that point then it's time for Congress to pass legislation explaining how the 14th section 3 is adjudicated. Until then, it's up to the courts to sort out.
NO, it is not up to the courts since the authority to enforce the provisions have not been abdicated, formally or otherwise.

That bolded statement isn't mine; it was provided by the source as the legal analysis of the highlighted provision of Sec 5. It's a legal analysis, so it is a serious contention.
I didn't imply the bolded section was your words nor was it the contention I was talking about. I was referring to your argument - that only Congress can enforce the 14th amendment - that was not a serious contention. The bolded legal analysis doesn't contradict that because it doesn't argue that Congress is exclusive in this authority.
The language of "The Congress shall have the power to..." is pretty freaking clear. 

"In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures..."

Legally, when the term "shall" is used, it has very specific legal connotation. Sec. 5 makes it uncontestably factually true that Congress does in fact have the exclusive authority in enforcing the provisions of the 14th. Period.  

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Hmmm...good research, Sir (or Madam). I did not know of that case, and as such, Trump may have screwed himself without even realizing it. 
Then again, context still matters given the circumstances. In that case, context may be as it was decided. But whereas the 14th Sec 3 is concerned, the context may be entirely different. 

In a couple months we will all find out. Having said that, until SCOTUS rules, arguing/debating about it is a futile exercise. 
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@<<<oromagi>>>
Can you provide a couple of  relevant, convincing precedents for self-executing legislation?
The disqualification of any presidential candidate under 35 or not born in the United States.

  • But that standard is objective, a measurable standard.  Insurrection is a subjective standard in a Democracy that encourages dissent.   To encourage dissent in the future, we must apply a standard that it could not apply to ordinary conduct in other offices.
What act would that be? The only process Congress has at its disposal to determine whether someone is guilty of an act is impeachment, and I went on about that at length in the OP.
  • not a precedented process or ceremony but an orginal act with bicameral supermajority support.   I would call that a sufficient process to enforce the constitutional prohibition.  Obviously, this is not much of a possibility in the real present.
The most convincing and damning tactic for ending MAGA is to win a one or two humiliating landslide elections that drive the facists and opportunist haters back into the closet for another generation.
I agree with this sentiment entirely, I really do wish this wasn't what we would be debating in an election year. But the constitution with all is provisions exist for a reason, if the best thing for a society to do is whatever the majority wants it would have no purpose. The whole idea is that we follow it regardless of whatever we deem to be best for the moment.

Congress' purpose is to make new law. Congress can make a law tomorrow that says convicted felons can't run for president until their prison time is served  (a sensible enought law) and Trump would be disqualified by November.


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#51
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The language of "The Congress shall have the power to..." is pretty freaking clear. 
Yes, to enforce via appropriate legislation. You continue to ignore that part even though I've repeatedly pointed out the difference, that this isn't a matter of legislation it's a matter of adjudication, and Congress is not the body nor does it even have the processes in place to adjudicate matters of law. The courts are designed for that purpose which is why this issue can only be decided in the courts. If Congress wants to pass a law now determining how the 14th amendment applies or is adjudicated then we'd be constitutionally bound to follow it, until then the language in the 14th is what we we have.

"In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures..."
Let's look at the rest of it:

"In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts,"

The passage never said states cannot rule, it said that any dispute over the amendment can be pushed upward to the federal level but again, it's not Congress that adjudicates it.

I think it is also noteworthy to point out here that according to what you've been arguing, if based on Section 5 no one else other than Congress can decide Section 3 then the same also applies to Section 1, so every federal case adjudicating Section 1 over the past century and a half were apparently all unconstitutional.
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The language of "The Congress shall have the power to..." is pretty freaking clear. 
Yes, to enforce via appropriate legislation. You continue to ignore that part even though I've repeatedly pointed out the difference, that this isn't a matter of legislation it's a matter of adjudication, and Congress is not the body nor does it even have the processes in place to adjudicate matters of law.
Show me where in the US Constitution that if Congress fails in its solely prescribed power to enforce the Constitution (which obviously includes the BoR), then by default it is up to the Judicial Branch of government to enforce the provisions of the Constitution upon the People (whomever is allegedly violating X provision).

If Congress wants to pass a law now determining how the 14th amendment applies or is adjudicated then we'd be constitutionally bound to follow it, until then the language in the 14th is what we we have.
Just because Congress doesn't pass legislation affirming the 14th Amendment and how to enforce the provisions therein, doesn't disqualify the legal merit/weight of the Supreme Law(s) of the Constitution in its Supreme Authority. And the Constitution doesn't require Congress to legislate anything to bind the US Government and State governments to it. They simply must not violate it, which is what many states have been doing and continue to try to do where the 2nd Amendment is concerned. Then the Constitutional question gets adjudicated, and states are repeatedly told "NO! You cannot do that. 'Shall not be infringed' is absolute."

Here we have a Secretary of State exercising authority she simply does not have, and a state (supreme) court making legal determinations without due process of law in labeling Trump an insurrectionist (which he was acquitted of via impeachment) and using bullshit sociological babble about coded language, like the man has ESP and can send signals to his followers brains as commandments, to justify that shitty court ruling removing him from the Colorado ballot. SO! This raises a Constitutional question that the US Supreme Court must review and decide those actions meet Constitutional muster. They don't, and in the next couple months we will hear just that from SCOTUS. 

I think it is also noteworthy to point out here that according to what you've been arguing, if based on Section 5 no one else other than Congress can decide Section 3 then the same also applies to Section 1, so every federal case adjudicating Section 1 over the past century and a half were apparently all unconstitutional.
Strawman. Never said "no one else other than Congress can decide" on anything. United States Codes are based on what government is allowed to do per the US Constitution. Those clarify by definitions of terms used throughout said Codes that dictate what is legal and illegal as they pertain to the Amendments and Constitution in and of itself. Same for Federal Statutory Law(s). They have to be in line with the Supreme Law of the land. If and when they are not, then a case is brought in federal court and taken all the way up the ladder to SCOTUS if it cannot be resolved in a lower appellate court. 

Take, for example 14/1. The government provides relevant legal definitions related to Sec 1 of the 14th via 1 USC 8. Namely when legal rights, privileges and equal protection of the law is bestowed upon [a] "person." Answer: birth. Which is precisely why a pregnancy has never been granted the same protections as the born living female person impregnated. No one has enhanced rights over another, least of all a pregnancy. 

Anyway, we will all be educated on this matter in a couple months when SCOTUS rules. And I will be waiting and watching for it. At that point we can continue this discussion, because as it stands now you're just not getting it. I give you credit for admitting you are not Constitutional Law scholar. That is quite apparent. 

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#53
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@Sam_Flynn
At that point we can continue this discussion, because as it stands now you're just not getting it
I am not getting it because your arguments are entirely incoherent and self defeating. You are simultaneously arguing that the courts do not have the authority to adjudicate whether Donald Trump is disqualified in accordance with the 14th amendment because that power rests solely with Congress...

"Show me where in the US Constitution that if Congress fails in its solely prescribed power to enforce the Constitution (which obviously includes the BoR), then by default it is up to the Judicial Branch of government to enforce the provisions of the Constitution upon the People"
...and that Congress is not the only authority that can decide the 14th amendment.

"Never said "no one else other than Congress can decide" on anything"
The fact that two mutually exclusive claims being made and defended at the same time is confusing is not my fault.
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@Double_R
At that point we can continue this discussion, because as it stands now you're just not getting it
I am not getting it because your arguments are entirely incoherent and self defeating.
LOL!!! The fuck they are. My arguments are sound and affirmed by everything I have cited herein. 
It is to YOU who is incoherent and retorts, quoting out of context, and going off on wild self-defeating tangents. Not I. 
You are NOT as smart as you clearly THINK you are. 


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#55
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@Sam_Flynn
Congress... in its solely prescribed power
 
Never said "no one else other than Congress can decide"
It doesn't take a genius to recognize the contradiction here, only someone who speaks English.
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@Double_R
Quoting out of context (fallacy), yet again. 

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@Sam_Flynn
Can the judiciary determine whether Trump is disqualified as per the 14th amendment, Yes or No?

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@Double_R
Based on the 14th Sec 5 and the 10th...as I already stated...

NO!

All SCOTUS can do is tell Maine SOS and CO Supreme Court is they acted unconstitutionally. 
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#59
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@Sam_Flynn
Can the judiciary determine whether Trump is disqualified as per the 14th amendment, Yes or No?
NO!
Then by extension, when you said...

Strawman. Never said "no one else other than Congress can decide" on anything.
You were contradicting your own position, or bulshitting at the very least.

So to be clear, based sec 5, no other body other than Congress can determine whether Trump engaged in inserection for the purposes of the 14th amendment. Is this correct?

#60
IwantRooseveltagain
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Show me where in the US Constitution that if Congress fails in its solely prescribed power to enforce the Constitution
Congress makes laws, the executive branch is required to enforce the laws through the Justice Department, meaning the FBI and the federal court system.

If anything goes against the constitution, the Supreme Court would make that decision.