by Harold Gielow, Gielow’s Glimmerings, ©2023
(Sep. 5, 2023) — Many recent articles have opined that states should keep President Trump off of state ballots because, due to the 14th Amendment, he is constitutionally ineligible. There are multiple problems with that position, one of which may give those pushing for such action pause.
First, it is disputed that states have this power. I have a letter from the AG of the Commonwealth of Virginia which maintains the following. “States have no authority with respect to establishing qualifications for federal offices, see U.S. Term Limits, Inc. v. THORNTON, 514 U.S. 799 (1995), nor do Virginia election officials have any duty to investigate whether a presidential nominee meets constitutional eligibility requirements. Further, when voting in a presidential election, Virginia voters are choosing electors rather than a particular candidate.”
Virginia law requires the State Board, through the Department of Elections, to “supervise and coordinate the work of the county and city electoral boards and of the registrars to obtain uniformity in their practices and proceedings and legality and purity in all elections.” Virginia Code Section 24.2-103. If someone is running, or their electors are running, who is/are not constitutionally eligible, Virginia law requires that the State Board take positive actions to obtain legality. In this I agree with the position that the state has a legal duty to prevent candidates or electors from appearing on the ballot if they are constitutionally ineligible, although the Virginia AG would disagree.
Here is the pill which many in the DC swamp would find hard to swallow in taking that position. The Constitution has an eligibility requirement that states the President must be a natural born citizen. There is currently no Supreme Court ruling on what that term means, although there are a plethora of Supreme Court dicta and congressional records defining it as one born within the sole jurisdiction of the United States of citizen parents. Judge Thomas has made light of this part of the Constitution in congressional testimony stating the court is avoiding the issue. Perhaps the left’s push for state action against Trump will open the door for state action on this constitutional issue as well. The argument for state action is the same, maintaining a positive duty of the state to ensure the legality of presidential elections, and both issues would likely end up at the Supreme Court.
If the left gets their way in having states leave President Trump’s name off of state ballots due to questions of constitutional eligibility, could states not also keep others off the ballot on a different constitutional eligibility question, such as natural born citizenship?
By the way, should the historical definition be upheld, Nikki Haley would be ineligible and Kamala Harris would be found to be holding office illegally. Obama’s presidency would also be found to have been illegitimate, his father not being an American citizen.
So, if the left wants to go down this road, I’m all for it, but they should not expect the issue to be limited to the 14th Amendment.
Read the rest here.
“No person shall be a Senator or Representative in Congress, or elector of President or 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 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….of any STATE, to support the Constitution of the United States, shall HAVE ENGAGED in insurrection or rebellion against the same, or give aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each house, remove such disability”- The 14th Amendment, Sec. 3, USConst.
1. The Executive (President) of the United States is NOT mentioned as a party to which this provision applies. Only to the “Executive…officer of any State”.
2. The President of the United States is not an “Officer of the United States” but is the sole Executive of the U.S. who is the appointing official OF “Officers of the United States”.
An “Officer of the United States” is “A position to which is appointed by legal authority a portion of the sovereign power of the federal government and that is ‘continuing’ in a federal office subject to the Constitution’s appointment clause”- Memorandum Opinion of the United States Department of Justice, Office of Legal Counsel to the General Counsels of the Executive Branch (2007).
The President is the appointing official of all “Officers of the United States” with the “Advice and Consent” of Congress. He is NOT an “Officer of the United States” him/herself. He is the creator of Officers of the United States. It is the President who DELEGATES the executive powers of the United States to others. Those powers are solely vested IN the President.
“The Executive power SHALL BE vested in a President” -Art.2, Sec.1
The states can’t keep Trump off the ballot because firstly that portion of the 14th amendment applies to the Civil War participants and all those individuals unless one is unaware of a magical Elixir that allows them to be still be living have long passed away. Secondly even if it were applicable today the constitution doesn’t say who decides the matter or who enforces it? Additionally if it applied to present day then a case could be made against Biden /Harris for providing aid to the enemy by leaving billions in military equipment to the Taliban after the Afghan withdrawal.
This is a DNC fantasy that will never happen.
Agreed Ted. Just by chance one or more does, I predict the greatest write in you ever saw.