Hecker Fink LLP’s Post

Eligibility of former President Donald Trump in Election 2024 Exploring the legal implications of Section 3 of the 14th Amendment of the U.S. Constitution, particularly its potential impact on the eligibility of former President Donald Trump and others for future oath-taking positions legal scholars William Baude from the University of Chicago Law School and Michael Stokes Paulsen from the University of St. Thomas School of Law provide a thorough analysis. They argue that due to their roles in the events surrounding the 2020 presidential election, Trump and possibly others are disqualified under this provision. They argue 14 (3) is self-executing and applies to any former officer, including the President, who has engaged in insurrection or rebellion against the U.S., as they interpret Trump’s actions related to the 2020 election. They emphasize that Section 3's applicability is not extinguished by past amnesty laws and remains relevant in modern contexts. Reference: "Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, Forthcoming, Available at SSRN: https://lnkd.in/gEUjWHA3. #ConstitutionalLaw #14thAmendment #PresidentialEligibility #LegalAnalysis #USPolitics #Baude #Paulsen #Election2020 #Trump #election2024 #Upenlawreview

CIVICS: SECTION 3 THE 14TH AMENDMENT American Constitutional scholar Laurence Tribe believes that the Senate GOP amicus brief in Trump’s support attacks Colorado’s supposed creation of a state’s rights “superpower” — but self-servanly disregards “Sec 3’s own built-in off-ramp for a 2/3 vote by Congress. That’s the real superpower here… Sec 3 draws a sharp line btw law and politics. The first part is a legal command about who cannot hold office that doesn’t demand action by Congress. But the second allows “Congress by a vote of 2/3 of each House” to lift a disqualification. The framers gave Congress — not POTUS or SCOTUS — power to grant a Sec 3 waiver on policy grounds:” “Perhaps Donald Trump deserves Section 3 amnesty. Perhaps not. But the answer to this question must come from our elected representatives in Congress. They were attacked on Jan. 6. Only they have the right to forgive— by a 2/3 vote of both houses.”

Here's an analysis of the constitutional implications of the Supreme Court decision in Trump v. Anderson, along with some important considerations: Background It appears the case centers on whether a state can bar a presidential candidate from its ballot if that candidate is deemed to have engaged in an insurrection. The majority opinion in the case seems to rule that states cannot do this, and also offers new restrictions on how Section 3 of the 14th Amendment can be enforced with regards to barring insurrectionists from holding office. Justices Sotomayor, Kagan, and Jackson concur with the judgment (that the state cannot act in this way) but disagree with the majority's additional pronouncements on Section 3. Constitutional Implications of the Decision 1. State Power vs. Federal Power The primary implication is that states do not have the independent authority to disqualify presidential candidates on grounds of insurrection. This underscores the federal control over qualifications for the Presidency. It leaves open the question of whether the federal government (Congress) possesses this power of disqualification under Section 3 of the 14th Amendment. 2. Restrictions on the Use of Section 3 of the 14th Amendment The majority opinion appears to create new rules or limitations that would make it more difficult to enforce Section 3 of the 14th Amendment. This provision was designed to bar individuals who had engaged in rebellion or insurrection against the United States from holding federal or state office. The concurring justices are concerned that the majority has gone too far and is making it difficult to use this essential tool to protect democracy from those who would undermine it. 3. Judicial Restraint vs. Judicial Activism The concurring justices invoke the principle of judicial restraint. They suggest the majority should have decided the narrow question of state action but avoided sweeping declarations about broader Section 3 enforcement. The majority, by offering broader rulings and interpretations, could be considered an example of judicial activism. Important Considerations Absence of the Full Opinion: We lack the full text of the majority opinion, which limits the ability to provide a more definitive analysis. Potential for Future Challenges: The concurring opinion suggests that the majority's decision does not prevent future challenges to a presidential candidate's eligibility based on Section 3 of the 14th Amendment. The question of federal enforcement remains open. #MovementThinking

Sec 3 draws a sharp line btw law and politics. The first part is a legal command about who cannot hold office that doesn’t demand action by Congress. But the second allows “Congress by a vote of 2/3 of each House” to lift a disqualification. The framers gave Congress — not POTUS or SCOTUS — power to grant a Sec 3 waiver on policy grounds: https://lnkd.in/diFk4ahQ

DEFENDING DEMOCRACY & RULE OF LAW As members of the legal community, we carry a profound responsibility to uphold the Constitution and the foundational values of our democracy. The deceptive claims surrounding the 2020 election threaten the integrity of our electoral system, demanding that lawyers safeguard this cornerstone of American democracy. Recent legislative actions in various states pose further risks to democratic principles, necessitating urgent and proactive engagement from all legal professionals. In these extraordinary times, we face an election that is far from ordinary. Preserving the rule of law hinges on lawyers' concerted efforts to combat illicit political maneuvers, as failure to do so risks eroding public trust in our justice system. It is incumbent upon every lawyer to educate our community on the threats to the rule of law and engage in constructive dialogues to address these challenges effectively. Embracing our role as legal advocates, we must vehemently oppose the abandonment of longstanding conservative values in favor of radical ideologies that undermine constitutional principles. This radical political expressions, which disregards the primacy of law, poses a grave threat to our legal autonomy and democratic institutions. As legal professionals, we cannot stand idly by as the rule of law and our democratic foundations are dismantled. Retired Judge J. Micheal Luttig says “Our moment of calling has come” in his address to bar leaders during the NCBP 2023 Annual Meeting about rule of law in the United States. Read Luttig’s speech at https://lnkd.in/guTaEu7J Let us unite in resolute action to defend our democracy, protect the rule of law, and preserve the core tenets of our legal system. #LegalCommunity #RuleOfLaw #ProtectDemocracy #UpholdConstitution

In this week's Micheli FIles article, I look at several California appellate court decisions that explain when legislative statements can be used to interpret an ambiguous statute. For me, these decisions explain why legislative debate in committees and on the Floors of the California Legislature can be valuable to the courts in our state, and why there should be more robust debate among legislators. Here is the link to the article in today's Capitol Weekly: https://lnkd.in/gqGwBxQH

“The Supreme Court fundamentally altered the way that our federal government functions on Friday, transferring an almost unimaginable amount of power from the executive branch to the federal judiciary. By a 6–3 vote, the conservative supermajority wiped out four decades of precedent that required unelected judges to defer to the expert judgment of federal agencies. The ruling is extraordinary in every way—a massive aggrandizement of judicial power based solely on the majority’s own irritation with existing limits on its authority. Now virtually every decision an agency makes will be subject to a free-floating veto by federal judges with zero expertise or accountability to the people. SCOTUS has undermined Congress’ ability to enact effective legislation capable of addressing evolving problems and sabotaged the executive branch’s ability to apply those laws to the facts on the ground. It is one of the most far-reaching and disruptive rulings in the history of the court.” This is a complete hostile takeover of our government - we must not stand for this. The three branches of government are supposed to be equal and this fascist, plutocratic-enamored court has just prostituted that, just as they have the First Amendment, the 2nd Amendment and women’s rights. #VoteBlue

It can no longer be said categorically that nobody is above the law in America. With this one decision SCOTUS has done away with the rule of law and has created a neo-monarchy in America. President can no longer be held accountable for official acts. What is an official act is left undefined. Tragedy here is that it is coming from a court which has been Textualist/Originalist. I wish they had cited Text or original intent to justify their action. I don't understand the need for it. In the 248 years of US existence no president has ever been prosecuted after he has left the office for official acts. DJT's troubles sprung his lawlessness but now he may go scot free. This SCOTUS has done more to disrupt America than any other in the recent history. Long established precedents have been done away with. Starting with gutting of the Voting Rights Act and Roe v Wade, it caused havoc. Chevron and now partial immunity have put us in to an uncharted territory. Given the life time appointments, this court can easily last another 20 years. God help us!

Not one of the more impressive editorials from the Washington Post editorial board. The notion that another piece of legislation would need to be passed to apply the #14thAmendment to #Trump or that it might not be applicable to the presidency is nonsense. The amendment specifies that a two-thirds majority vote in both houses of Congress would be necessary to *nullify* his disqualification based on a legal determination that he incited the insurrection or gave aid and comfort to the enemies of the Constitution of the United States, which he obviously has and continues to do openly and brazenly. Logically if the intention is to keep insurrectionist leaders from insinuating or waltzing themselves back into government in order to protect its foundational integrity and stability, the most powerful—and, under his leadership, most destructive—office in the land should not be an exception. The argument that the courts should be reluctant to deny Americans the ability to vote for or against Trump, essentially because he has a robust propaganda network buoying his public image despite his illegitimacy, is an argument for wavering in fear on applying the law, which was designed exactly for this type of threat and intended to be applied to it. What's almost certainly going to happen if he is allowed to run is if he loses, he's going to attempt another coup, and if he wins, he's going to establish a dictatorship and persecute his enemies: everyone who upheld their oath to defend the Constitution. Better to preclude that scenario and if he wants to rile up what's left of his militias in response, send him to prison or if necessary, have him disposed of. Nothing wrong with that whatsoever when it comes down to it. #2024election #insurrection #January6th #democracy #authoritarianism #fascism

America will now have a king, above the law that applies to the rest of us, until at some point if American can return to a place of judicial and political respect for the Constitution and what so many have died to protect. The majority of this Court is driven not buy reason, law, history or Constitutional protection: it is driven by pre-determined results designed to protect a particular political party and view, using whatever manufactured theory and fear it needs to get there. https://lnkd.in/epB2fAPq