The Two Experts, Part Two - Special Guests William Baude and Michael Stokes Paulsen
Sep 6, 2023
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Legal experts William Baude and Michael Stokes Paulsen continue their exclusive discussion on the enforceability of Section Three of the 14th Amendment, exploring its potential application to Donald Trump and others. They analyze Congress's role in enforcement, discuss recent cases related to the January 6th insurrection, and raise questions about who has the authority to interpret the Constitution. The podcast also delves into the concept of rebellion, the president's obligations, and the exclusion of specific individuals from office.
The enforcement of Section 3 of the 14th Amendment could be resolved through state court proceedings and potentially reach the U.S. Supreme Court, impacting candidate eligibility nationwide.
Legal challenges related to Section 3 would ensure due process through state court proceedings and potential involvement of federal courts.
Congress holds the power to judge qualifications and exclude disqualified individuals if elected, while the Supreme Court's interpretation may influence Congress's approach.
State and federal court decisions, along with Congress's actions, will shape the resolution of Section 3 enforcement, considering practical and political factors.
Deep dives
Enforcement and Resolution
The enforcement of Section 3 of the 14th Amendment, which disqualifies individuals who have engaged in insurrection or rebellion from holding office, is likely to be resolved through various legal avenues. State officials, such as Secretaries of State, may play a role in determining candidate eligibility under Section 3 through state court proceedings. These proceedings could challenge the inclusion of disqualified individuals on the ballot, potentially leading to decisions by state courts and, ultimately, the U.S. Supreme Court. The Supreme Court's ruling on the meaning of Section 3, if presented with a case, would have a nationwide impact. Additionally, Congress has the power to judge the qualifications of its members under the Elections Clause, and Section 3 could be enforced through processes such as the exclusion of disqualified individuals from taking their seats. Overall, the resolution of Section 3's enforcement may involve a combination of state and federal court decisions, as well as actions taken by Congress.
Due Process and Legal Challenges
Legal challenges related to Section 3 would ensure that due process is followed. State court proceedings would provide an opportunity for challenges to be heard, with state officials applying their own state laws and procedures to determine candidate eligibility under Section 3. These proceedings could be contested by litigants, potentially leading to federal court involvement. However, certain procedural hurdles and complexities in federal court may complicate initial suits. Resolving these cases through state court systems, where evidence can be presented and arguments can be made, may be a more viable route. Ultimately, if a case reaches the U.S. Supreme Court and the Court upholds a determination of ineligibility, its ruling would likely settle the issue nationwide.
Congressional Role in Disqualification
Congress can play a role in enforcing Section 3 through its authority to judge the elections, qualifications, and returns of its members. If individuals disqualified under Section 3 are elected or seek to be seated, Congress would have the power to exclude them. Additionally, each house of Congress can expel a member with a two-thirds vote. However, the Supreme Court's interpretation of Section 3 would carry significant weight and may influence how Congress approaches disqualification cases. Congress's role in counting electoral votes and the potential impact on Section 3 enforcement require further examination.
Potential Scenarios and Political Considerations
In hypothetical scenarios, where state courts or the Supreme Court determines an individual to be ineligible under Section 3, their disqualification would likely have a nationwide effect. State and federal court decisions, alongside Congress's actions in evaluating qualifications and enacting legislation, can shape the ultimate resolution of Section 3 enforcement. While legal pathways exist, political factors and practical considerations may influence the outcome. The role of state election officials, state courts, the Supreme Court, and Congress will all contribute to the broader discussion on enforcing and interpreting Section 3 of the 14th Amendment.
Congress as the Relevant Decision Maker
Congress holds the authority as the relevant decision maker in determining the outcome of presidential elections. The historical precedent, dating back to elections in 1800, 1824, and 1876, supports the idea that Congress, not the Supreme Court, has the power to decide election disputes. This is based on the interpretation that Congress has a duty to count and tabulate votes, and its role is primarily ministerial rather than involving substantive power to review the constitutionality of the votes.
Disqualification of Donald Trump
Donald Trump is seen as disqualified from the presidency based on his involvement in the insurrection or rebellion to overturn the 2020 election results. The events of January 6th, where the Capitol was attacked, are characterized as an insurrection attempting to oppose the authority of the government. Trump's incitement of the attack through his speech and subsequent inaction when the violence escalated are cited as evidence of his engagement or aid and comfort to those involved. The totality of his conduct, including attempts to subvert state election processes and undermine the counting of electoral votes, contributes to the case of disqualification.
Examining Insurrection and Rebellion
Insurrection and rebellion are analyzed in relation to the actions of Donald Trump. The distinction between insurrection, which involves forcible resistance to the execution of laws, and rebellion, which seeks to upend the legal regime, is explored. The course of conduct by Trump is seen as an attempt to overthrow the results of a constitutional election, potentially qualifying as a rebellion. The argument is made that even if January 6th is considered a ministerial counting process, attempts to obstruct this process and manipulate the outcomes can still be viewed as rebellion. The impact of these events on the legitimacy and stability of the government is mentioned, emphasizing the role of Congress as the most legitimate decision-making body.
***CLE Available*** We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter the Fed Courts classroom and look at - what else - the Constitution’s voice on these matters, in the 14th amendment, and elsewhere. Continuing Education Credit is available by going to podcast.njsba.com after listening.
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