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Question:

What's going on with the effort to disqualify Trump for 2024 under the Constitution.

To recap:

Two legal scholars from the very influential right wing Federalist Society came out with a 128 page report about four weeks ago claiming Trump was ineligible, based on the "disqualification clause" of the US constitution quoted below:

Amendment 14, Article 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.

The federalist society co-founder Steven G. Calabresi was quoted supporting the report, although he has subsequently changed his mind. The Federalist Society report is noteworthy because 5 of the six Republicans on the supreme court are members of this society. The one republican on the supreme court who is not a member is John Roberts the Chief Justice, who has served on the group's steering committee. The Federalist Society report crafted from an originalist point of view, could be persuasive to these other originalists.

Link to the story: The Constitution bars Trump from holding public office ever again

Following this two other noted legal scholars wrote a supporting article: Retired conservative Federal Judge J. Michael Luttig and an influential Democrat, "University Professor" of Harvard Law school, Laurence H. Tribe.

The Constitution Prohibits Trump From Ever Being President Again

I subsequently heard an interview with Judge Luttig who outlined how this would play out. He said it would start with some states bringing suit to bar President Trump from the ballot. He predicted there could be multiple supreme court hearings on this matter. First to determine who has standing to bring a court case to remove him from the ballot? The second supreme court on whether the clause applies to President Trump.

In the month since the Federalist Society released their brief, what's the status of this case?

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  • 1
    A few points: 1) The founder of the federalist society ... -- There are actual six co-founders, so, maybe, One of the founders .... 2) ... the Federalist Society released their brief ... -- The Federalist Society doesn't release briefs. See the FAQ "Q. Does the Federalist Society take positions on legal or policy issues or engage in other forms of political advocacy?" A. No.
    – Rick Smith
    Sep 9 at 1:38
  • 3) Maybe not use brief. Briefs are filed in courts. The paper that was released was a pre-print of a law review article by Baude and Paulsen, papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751. 4) Including references to a number of damning articles in the recap, makes the question "appear to discredit". 5) Missing tags for [united-states], [fourteenth-amendment] and [donald-trump].
    – Rick Smith
    Sep 9 at 1:39
  • Note that the Constitution only says that such a person can’t hold the office of President, not that they can’t run for or be elected to that office.
    – Mike Scott
    Sep 9 at 6:59
  • @MikeScott 14:3 has been used to remove elected officials from office. Couy Dale Griffin, 2022 was removed as a county commissioner in New Mexico. Couy participated in Jan 6th as founder of a group called Cowboys for Trump. The federalist society brief says it can also be used to deny him a spot on the ballot. It says just like the age limit for the Presidency the 14:3 is a minimal requirement for office and self-executing. I believe there is precedent for that, but not precedent against a Presidential Candidate.
    – user47010
    Sep 9 at 16:20
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    @ItalianPhilosophers4Monica Opinion's differ, that's what the supreme court will decide in a second case. The federalist society opinion as well as Luttig and Tribe say "aid and comfort" is a pretty low bar, and what's in the press already satisfies that criteria. But I don't think that's really settled.
    – user47010
    Sep 9 at 20:12

1 Answer 1

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Question:

What's going on with the effort to disqualify Trump in 2023 under the Constitution, Amendment 14, Article 3.

Answer:

There is a case upcoming before the Supreme Court John Castro v Donald J. Trump scheduled to be evaluated next month in Oct. As of 9/14/2023 there are 5 state lawsuits from: Colorado, Michigan, New Hampshire, Utah, and Virginia to bar Trump from the 2024 ballot. The Petition asks the following questions to be answered.

Supreme Court Case asks for the following questions to be answered:

  1. Whether Trump’s actions, words, and/or conduct with regard to the January 6, 2021, insurrectionary attack on the United States Capitol rise to the level of providing “aid or comfort” to the insurrection is a question of federal law. Before Castro can pursue any relief, this federal question must be answered. The process by which that question is answered can be had through the Declaratory Judgments Act. A declaratory judgment would answer all of these questions and clarify the rights and legal relations between Castro and Trump

  2. Declaration Whether Trump Provided Aid or Comfort to insurrectionists

  3. If Trump was Found to Have Provided Aid or Comfort to the Insurrection, Could Trump be Enjoined from Campaigning as that Would Be Knowingly Fraudulent Misrepresentation

  4. If Trump was Found to Have Provided Aid or Comfort to the Insurrection, Could Trump Be Enjoined Unconstitutional from the Act of Submitting a State Ballot Access Application

  5. If Trump was Found to Have Provided Aid or Comfort to the Insurrection, Could Declaratory Judgment Permit State-Level Enforcement to Enjoin State Election Authorities from Accepting the Ballot Application

  6. Does Petitioner Have Standing to Enjoin the Republican Party from Nominating Trump

  7. Alternatively, as a Write-In General Election Candidate, Does Petitioner Have Standing to Enjoin Trump’s Inauguration

  8. Based on all of the foregoing, Castro has constitutional standing to pursue this civil action. And by implication of redressability, Castro has stated claims upon which relief can be granted.

State Lawsuits

A group including two notable republicans, former congresswoman Claudine Schneider and former Colorado senate majority leader Norma Anderson, brought a lawsuit Sept 6th to have Trump removed from the Colorado ballot.

New Hampshire Attorney General John Formella and Secretary of State David Scanlan announced that they are looking into the "potential applicability" of the 14th amendment with regards to the upcoming presidential election cycle.

Republican Presidential Candidate John Castro has a petition lawsuit in New Hampshire to remove Trump from the ballot and also the pending case before the Supreme Court of the United States.

  • Michigan

Activist files legal challenge to disqualify Trump from 2024 presidential race in Michigan Robert Davis has a lawsuit to remove Trump from the ballot.

  • Utah

Lawsuit cites 14th Amendment, would disqualify former President Trump from Utah ballot

  • Virginia

Hampton Roads voters file federal lawsuit that aims to keep Trump off the ballot in Virginia

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  • So we simply have to wait until the court cases are concluded. From experience, how long does that take typically?
    – NoDataDumpNoContribution
    Sep 9 at 18:37
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    @paulj States determine who is eligible to be on the federal ballot and it isn't uncommon for a presidential candidate to be on the ballot in all states.
    – Joe W
    Sep 12 at 2:01
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    @NoDataDumpNoContribution and JMS: JMS is being imprecise in saying "the case before the supreme court now is to decide who has standing to ask the supreme court the bigger question." In fact, that case is about whether one specific individual has standing under one specific theory of injury. Others could try to establish standing under other theories. It's also possible that a state executive officer will determine that the clause disqualifies Trump, who would then certainly have standing to sue. The courts could nonetheless decline to reverse the official's finding.
    – phoog
    Sep 12 at 17:56
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    "Seems like Supreme Court is pretty motivated to handle this quickly given how quickly they agreed to hear the first case": my guess is that they want to reduce the burden on the court system by establishing quickly that "political competitor" standing does not apply in this fact pattern. In other words, I think they'll rule fairly quickly that the lower court was right to dismiss the case.
    – phoog
    Sep 12 at 18:08
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    @phoog, excellent. your comment prompted me to read the actual supreme court petition. I wasn't just "imprecise" I was wrong. I'm going to amend my answer. There are 9 questions to be answered by the SC. The first "Whether Trump’s actions, words, and/or conduct with regard to the January 6, 2021, insurrectionary attack on the United States Capitol rise to the level of providing “aid or comfort” to the insurrection"
    – user47010
    Sep 12 at 18:11

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