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Is Trump already ineligible? [1]

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Date: 2023-08-15  

An opinion piece in today’s WaPo suggests that the Fourteenth Amendment clause making anyone who participates in insurrection against the US ineligible to hold public office might already apply to Trump. The opinion is supported by a conservative law review article that makes the legal argument.

These scholars explain in a forthcoming law review article that the Jan. 6 attack on the Capitol was an insurrection within the meaning of this clause and, crucially, that Trump engaged in this insurrection within the clause’s meaning, by both fomenting it and failing to exercise his presidential powers to stop it once it was underway.

However, to avoid a Constitutional crisis, Trump’s eligibility should be ruled on by SCOTUS before the election. If there is no court ruling and Trump wins (a small, but non-zero possibility), and a vote by Congress determines that Trump is ineligible, there could be a refusal to certify on Jan. 6, 2025 — which would inevitably result in a genuine crisis.

The article lays out the steps necessary to get such a ruling. First there should be a state election officer who rules that Trump is ineligible based on the 14th Amendment, who would concurrently seek a state court ruling to confirm. Any decision would be appealed, and presumably expedited to SCOTUS. Their decision would be binding on all states.

But state election officials do not currently have the power to make that ruling, so there would first have to be a state legislature passing a bill to authorize a state election official to make such a ruling. This could happen in any state, likely a blue or purple state, and the process would settle the issue once and for all.

A swing state controlled by Democrats, such as Michigan, could — and should — do this, but any single blue state would suffice. If any one state’s judiciary were to order Trump off the ballot, pursuant to this kind of statute, it would require the Supreme Court to resolve the matter for the entire nation.

Personally, I would love to see this happen, regardless of the final outcome — to settle the Constitutional question as well as for its entertainment value. I honestly don’t know if Dems are better off with Trump on or off the ballot, but I’m fully prepared for the consequences. And the lessons for democracy would be epic.

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[1] Url: https://www.dailykos.com/stories/2023/8/15/2187414/-Is-Trump-already-ineligible

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