Tag Archives: Fourteenth Amendment

Candidate Trump — Felon Ballot Access Restrictions and the Fourteenth Amendment

By tmess2 | Published August 27, 2023

We are heading into uncharted waters.  A major political party has become a cult in thrall to a person who may not be eligible to run for president (or at least barred from the ballot in several states) who insists that he should be the nominee in 2024.  Add to that a martyr complex by the true believers who have taken over many state parties, and we are heading into potential chaos for the Fall of 2024.

Of course, one of the complexities is that the national election for president is when the electoral college meets and votes and sends those votes to Congress to be counted.  Up until that Wednesday in December, we have fifty-one elections for presidential electors and more elections for delegates to the nominating convention.  Each of the jurisdictions (states and territories) involved in these elections have different rules and procedures.

Having said that, there are several general things that are consistent from state to state.  First, for the general elections, the parties certify the name of their presidential and vice-presidential candidate in late August or early September.   Second, there is a state election authority which receives and processes the candidate paperwork for state and federal candidates.  For the most part, these officials rarely refuse candidate filings, but they are tasked with determining whether the filing to be on the ballot is complete and shows that the candidate is eligible to run under state law.  Third, decisions on whether a candidate qualifies to be on the ballot is subject to some form of judicial review.  But, assuming that the election authority finds that a candidate is eligible to run, the different states have different rules on who can challenge that determination.  In all, or almost every state, the opposing candidates have the right to bring such a case, but the rules as to who else has that right differs from state to state.  Fourth, if, for some reason, a party’s nominee has to be replaced on the ballot, it generally falls on the state party to name a replacement.  Fifth, for the presidential election, there is actually a ticket composed of the candidates for president, the vice-president, and the presidential electors.  It is the last two or three where the potential for chaos emerges. Continue Reading...

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Legal Issues Related to the Debt Ceiling

By tmess2 | Published May 27, 2023

With the Republicans once again playing a game of chicken with the debt limit, there has been a lot of chatter about options that the Biden Administration has if the Republicans continue to make unreasonable demands.

To understand the legal issues, it is necessary to understand the different legislative actions related to the debt ceiling.  First, there are the laws related to the budget process.  There are two key aspects to these laws, the first requires Congress to annually pass a budget resolution.  The problem with this law is that one Congress is unable to bind a future Congress.  So Congress does not always pass a budget resolution.  The key thing to remember is that a budget resolution is a concurrent resolution which means that it has to pass both houses but does not go to the President.  In other words, it is not a law.  Instead, the impact of the concurrent resolution is internal to the legislative process.  The budget resolution sets the broad limits for the two Appropriations Committees in drafting the annual appropriations bills.   Additionally, if a budget resolution passes, the budget resolution triggers the reconciliation process which allows the Senate to pass budget related bills without having to overcome the filibuster.  A budget resolution (like the President’s budget proposal which starts the budget process) will typically contain estimates/target numbers for the other components of the budget.  The budget laws also restrict the ability of the President to refuse to spend or to reallocate the money allocated in the budget.

And here is where we get to the actual laws at issue.  In thinking of the budget, there are three types of laws.  In any budget, there are two sides of the equation:  1) income/revenue; and 2) expenditures.  For the most part, the laws on the income side of the equation are tax laws.  (There are certain other things like mineral leases on federal land and user fees at federal facilities, but the primary source of revenue is from taxes).  By its nature, revenue is not entirely predictable.  If every investor tomorrow decided that now was a good time to sell their current stock holdings and buy an entirely new stock, that decision would trigger a significant amount of capital gains and capital losses which in turn would dramatically alter the total income taxes received by the federal government.  But, while there is a degree of unpredictability, there is also a good amount of predictability — subject to changes in the economic climate. In other words, the revenue estimate for any given year will be close but not exact. Continue Reading...

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Impeachment vs. 14th Amendment vs. 25th Amendment

By tmess2 | Published January 16, 2021

Up until his very last minute in office (and beyond it), Donald Trump is making history in ways that his descendants will not like.  In fifty years, instead of saying that a person’s name is Mud(d), we might be saying that his name is Trump.

Right now, there are three possibilities being discussed in D.C. and on op-ed pages.  Each have some legal questions associated with it.

The first option — which seems dead in the water as the Cabinet and Vice-Coward Mike Pence seem to be reluctant to take responsibility for suspending Trump’s presidency is the Twenty-Fifth Amendment.  Many constitutional amendments are simple establishing one basic rule.  E.g.  authorizing or repealing prohibition, giving women the right to vote).  Others, like about half of the bill of rights, have multiple related but separate concepts (e.g. First Amendment covering freedom of speech, freedom of religion, and freedom of assembly).  The Twenty-fifth Amendment is one of those multi-part amendments addressing several aspects of presidential succession. Continue Reading...

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Equality and the Constitution

By tmess2 | Published January 20, 2020

Recently, Virginia became the 38th state to ratify the Equal Rights Amendment.  This vote by the Virginia legislature raises several issues that have only rarely been faced in terms of the text of the Constitution, and there is very little in terms of precedent.  In fact, the closest example might be the ratification of the Fourteenth Amendment.

There are, of course, some unique features of the Equal Rights Amendment.  Up until 1900, proposed constitutional amendments did not have time limits on ratification.  However,  starting with the Eighteenth Amendment (prohibition) in 1917, four of the nine amendments ratified had time limits.  In addition, two of the three other amendments submitted to the states also had time limits.  In other words, since 1916, half of the proposed constitutional amendments had time limits.  However, until the Equal Rights Amendment was ratified by it’s thirty-eighth state, there has never been a constitutional amendment ratified after the expiration of the time limit for ratification.

It is unclear if Congress has the authority to put a time limit on ratification.  Article V provides  that Congress may propose constitutional amendments (by a two-thirds vote of both houses).  It also gives Congress the power to refer the amendment to state conventions rather than to the state legislatures.  However, it is silent about whether Congress may place a time limit on ratification.  There are, of course, good reasons for having a time limit.  The only remaining pending amendment from the package of amendments that became the Bill of Rights would require one representative for every 50,000 persons in a state.  If adopted, it would instantly expand the House to over 6,000 members.  So there are policy arguments for recognizing the power of Congress to place a time limit on consideration.  On the other hand, a strictly textual argument and the practice of the original congresses would dictate that Congress does not have the policy to impose a time limit. Continue Reading...

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