How to research presidential requirements

November 20, 2024 12:27 PM

I am trying to answer some tough questions for the young people in my life, and myself, and guide them to where the information can be found.

The question I'm trying to answer, with facts and reason, is: with his actions on Jan 6, decades long ties to Russia, and known crimes, how is the president-elect allowed to be president?

Does the United States have anything in place to prevent this from happening, and if so, where can I find this information?

If there is not something in place to prevent a president-elect from causing harm to our country, why not? And, can something be implemented in order to prevent them from taking office, since they are making it known they intend to do grievous harm?

If you know the answers, please share, but also I'd like to know where the answers can be found.

Thanks!

posted by racersix6 to Law & Government (21 answers total)

The constitution holds answers to most questions like these, but, unfortunately, said document is open to interpretation. We live in a time where precedents and political norms are being subverted by an oligarchy, and this oligarchy has done a seemingly very good job of placing people who are beholden to them in positions to interpret the Constitution.
Glibly spoken, a thing is only illegal if the justice system acts, and currently the justice system is being guarded at the top by a majority faction that is not inclined to act. Money has bought the judiciary by making promises to ideologues who are anti-liberal, and will apparently excuse any illegality in order to preserve their conservative "values".
posted by OHenryPacey at 12:43 PM on November 20, 2024 [2 favorites]

Does the United States have anything in place to prevent this from happening[...]?

No.
posted by kickingtheground at 12:45 PM on November 20, 2024 [3 favorites]

This might sound idealistic, and it's admittedly highly simplified, but fortunately the answer is no: We had a imperfect but ultimately fair and free election, and because we are a democracy, there is no way to stop the candidate who was elected by the people from taking office. I only hope we can keep it that way.
posted by Mr.Know-it-some at 12:48 PM on November 20, 2024 [6 favorites]

I think the big picture answer is that half of America thinks his actions on Jan 6th were in defense of democracy and the other half think it was an attempt to undermine democracy. There are still people that believe that 2020 was stolen.
Another concern is that he is very good at insulating himself from crimes committed around him. Indisputably, some people vandalized the Capitol on Jan 6th. There was some attempt to influence people to disrupt operations at the capitol during a rally. Trump was at that rally and repeated the claim that the election was stolen but the strongest calls to action came from other speakers. Some people even believe it was a false flag operation from the democrats.
If there was consensus that he committed treason he would not be president and I think that is a theme in the constitution. If people agree the power of the government is behind them and otherwise is silent. If you want to be able to get away with anything in America all you have to do is keep people split down the middle.
posted by billythethird at 12:51 PM on November 20, 2024

Piggybacking on @kickingtheground's answer:

We (and those who came before us) *thought* we did... but it was apparently ineffective / much more easily circumvented than anyone could have imagined.
posted by stormyteal at 1:07 PM on November 20, 2024 [3 favorites]

It turns out that much of what we thought of as rules were really norms that people could discard at will. Or at best, they were vague and toothless regulations that had only held with buy-in from both sides.

See also the emoluments clause, the Hatch Act, etc.
posted by DirtyOldTown at 1:12 PM on November 20, 2024 [6 favorites]

Some countries have a national body that decides who is eligible to be on the ballot. There will be some constitutional or legal requirements, and some group of august elders get together and decide who is on and who is off.

Needless to say, this can get contentious, but a lot of countries do have a mechanism like this.

The US doesn't, at least not explicitly.

In one sense, it has 50: each state has rules for ballot access, and who decides varies, sometimes it's the Secretary of State for that state. So, for instance, most third parties can't even get on the ballot in most states due to local rules, but it varies.

In another sense, it has a body that occasionally takes this role, the Supreme Court. And in fact there is a constitutional rule that would seem to disqualify him: the fourteenth amendment, section three, forbids insurrectionists from holding office. However, it doesn't prescribe who decides someone is an insurrectionist, which is a bit tricky. A state decided that they could keep Trump off the ballot, citing this section. It went to the Supreme Court who concluded that without some sort of implementing legislation from Congress, this clause is effectively dormant. Without (eg) some law actually directing states to keep insurrectionists off the ballot, it's a dead letter.

In yet another sense, the defense against bad Presidents was supposed to be the Electoral College. These days, the identities of the Electoral College are basically meaningless- they are real people but they are bound to vote for the winner in each state. However, in the original idea, these Electors would actually be completely free to decide who to pick. So, they were meant to be august elders who could soberly decide to simply not pick a bad president.

All in all, these mechanisms were all meant to prevent a bad president from ever being electable in the first place: either leaving them off the ballot (so voters could pick someone else they liked) or by outsourcing the election to an august body of old guys who are smarter than the country at large.

There has never been a real mechanism to boot a bad president-elect short of impeachment, which would probably work: impeachment can remove, but also disqualify someone preemptively. The Senate had the opportunity to do this after January 6th and just chose not to, because the Republicans closed ranks.

Essentially, he was eligible to run because enough Republicans wanted him to be, and the opposition to him didn't have enough levers of power (SCOTUS, the federal judiciary generally, the Senate) to do anything about it.
posted by BungaDunga at 1:16 PM on November 20, 2024 [7 favorites]

There are mechanisms in place to prevent someone like Donald Trump from running for President, but those mechanisms need to be enforced by people.

Donald Trump was impeached by the House of Representatives twice. If he had been convicted by the Senate, he would have become ineligible to run for office again. Unfortunately, Republicans in the Senate put party loyalty above constitutional duty and did not vote to convict him.

The Constitution also says that anyone who has engaged in insurrection is disqualified from certain roles. The Supreme Court ruled that without enabling legislation (a law describing in more detail how the constitutional rule should be applied), it could not be applied to Donald Trump.

Donald Trump was facing criminal charges in several jurisdictions. These charges could have been brought very soon after he lost the election in 2020, but Merrick Garland decided it would be unseemly to prosecute a former president, and so he let the matter lie until his hand was forced by House Democrats. By the time the charges were filed, Trump was able to use delaying tactics to make sure nothing went to trial before the election.

He was aided in this effort by a judge he appointed in Florida who has issued decision after decision that legal scholars say have no basis in law but that, coincidentally, benefitted Trump.

Trump's lawyers also made the argument that he was immune from prosecution for basically anything he ever did while he was president. Legal scholars and judges scoffed at the idea until it got the Supreme Court, and the Supreme Court issued a ruling that pretty much said presidents could do whatever they wanted and never be charged with a crime. It wasn't the constitution that said that. It was six Justices of the US Supreme Court.

So you can have mechanisms, rules, laws, constitutions all you want. But those need to be upheld and enforced by people. And the people won't do that, the country has no protection at all. The message I would give to the children is: every generation has to work for democracy. Some people think it's okay to lie if helps their side win, but it's never okay to do that. We need to work together, demand the truth, and we can take our country back and make it a good place for everyone to live.
posted by Winnie the Proust at 1:17 PM on November 20, 2024 [12 favorites]

By the time the charges were filed, Trump was able to use delaying tactics to make sure nothing went to trial before the election.

tbh considering how the MAGA judiciary went to the mat for Trump, I am skeptical that any prosecution could have been completed. Even the state prosecution is plausibly destroyed by the complete bullshit executive immunity ruling, and all of that would have just happened maybe 18 months early. Is it possible an extra year could have made something stick? yeah definitely. it also might have done essentially no good at all.
posted by BungaDunga at 1:22 PM on November 20, 2024

Constitutional Requirements to be President

• Be a natural-born citizen of the United States
• Be at least 35 years old
• Have been a resident of the United States for 14 years

Maybe I'm missing the point, but seems like all the requirements are met here.
posted by skunk pig at 1:23 PM on November 20, 2024 [5 favorites]

the fourteenth amendment pretty clearly adds another qualification— not an insurrectionist. A "fun" thought experiment: the 22nd amendment should disqualify anyone from winning the presidency more than twice (another qualification!) but there is no implementing legislation for that either...
posted by BungaDunga at 1:25 PM on November 20, 2024 [2 favorites]

Piggybacking on @kickingtheground's answer:

We (and those who came before us) *thought* we did... but it was apparently ineffective / much more easily circumvented than anyone could have imagined.

Not everyone thought that!
posted by kickingtheground at 1:33 PM on November 20, 2024 [1 favorite]

A "fun" thought experiment: the 22nd amendment should disqualify anyone from winning the presidency more than twice ...

Even if it prevents someone from winning more than twice, it does not prevent someone from being elected vice president and then rising to the presidency upon resignation of the president. That's the Putin model.
posted by mr_roboto at 1:33 PM on November 20, 2024

Most people do not want to hear this, but the rules and requirements of government that we learn about in high school Civics class do not actually describe how power works. It would be good if young people were aware from an early age that these are comforting fictions. The only requirement for becoming president is that one has, in actual reality, accumulated the necessary power to become president. What could prevent this would be a counterforce with sufficent power. Legal processes are not totally irrelevant, of course, but they always are and have been tools of power. One could gain a good idea of the answers to the questions in the OP not through studying legal documents but through careful study of this book, mutatis mutandis.
posted by demonic winged headgear at 2:35 PM on November 20, 2024 [3 favorites]

This might be an interesting one to read through with the kids, depending on their age. https://hls.harvard.edu/today/are-there-holes-in-the-constitution/
posted by purple_bird at 3:09 PM on November 20, 2024 [1 favorite]

The unfortunate historical precedent was that in the 1850s, the Southern states decided that they couldn't tolerate a President who did not support the continuation of slavery, which to them was an existential 'grievous harm' to the country. When Lincoln was elected in 1860, it was their casus belli for the Civil War.
posted by Fiasco da Gama at 4:12 PM on November 20, 2024 [1 favorite]

Mr. Roboto, eligibility to be elected President and being from a different state from the President-elect are the two requirements to be elected Vice President. A twice-elected President is thus ineligible to be elected Vice President by the Electoral College. She or he could, however, be appointed Vice President in the case of a vacancy, and succeed as President thereafter, or be elected or appointed to another office in the order of succession and then duly succeeded when each higher office became vacant. We’d only see this after a coup or auto-coup that wanted to preserve the optics of legitimacy or as some kind of grave emergency measure for a government of national unity that needed George W. Bush or Barack Obama as its head.
posted by MattD at 4:19 PM on November 20, 2024

imo this isnt even really about democracy... its about propaganda, fear, ignorance, hate, greed. democracy can easily be an expression of those, just as it can for anything else.
posted by AlbertCalavicci at 6:46 PM on November 20, 2024

The US did have something in place which acted as a check against bad Presidents until Andrew Jackson desroyed it and instituted the spoils system.

Trump has often likened himself to Andrew Jackson, though it’s ridiculous to think the man who had to be told by his aides what Pearl Harbor was could have come up with that on his own. My money would be on Bannon.
posted by jamjam at 7:25 PM on November 20, 2024

Does the United States have anything in place to prevent this from happening

Yes. Elections.

If there is not something in place to prevent a president-elect from causing harm to our country, why not?

Because “harm” is nebulous and subjective and is not the sort of thing we preemptively legislate. It is the sort of thing we decide as a nation in our elections.

And, can something be implemented in order to prevent them from taking office, since they are making it known they intend to do grievous harm?

You mean like a nationwide vote to determine whether the country, as a whole, agrees with your assessment that the candidate’s plans amount to grievous harm?
posted by moosetracks at 2:00 AM on November 21, 2024 [6 favorites]

Because “harm” is nebulous and subjective and is not the sort of thing we preemptively legislate. It is the sort of thing we decide as a nation in our elections.

Here's an interesting article about disqualification generally.

First, backward-looking group rules have been adopted in many transitional democracies. In these cases, democracies have deployed rules screening, barring or even removing candidates from public office based on their association with a prior regime. Lustration, as this practice is known, is closely associated with the transition from communism after the Iron Curtain fell. In the Czech Republic, for example, some 15,000 individuals were removed or barred from public office after 1989. In the eastern portion of reunified Germany, lustration under reunification treaty provisions resulted in some 54,926 people being removed or barred from office. It has also been used in post-invasion Iraq, where the Baath Party was disbanded and its members excluded from office...

Some 29 percent of working constitutional courts around the world have the ability to adjudicate the legality or constitutionality of political parties. Party bans have been imposed recently across regions and contexts, from Spain and Turkey to Israel and South Korea...

Under section 7A of the Basic Law: The Knesset, for instance, the legislature can prevent candidates from running for office if they engage in speech denying the Jewish and democratic nature of the state, inciting racism, or supporting the armed struggle of a state or terrorist organization against Israel.

It also covers all the various ways disqualification exists in US law and how it has been toothless re: Trump.
posted by BungaDunga at 8:46 AM on November 21, 2024