cc: @BadLegalTakes

https://twitter.com/sethabramson/status/1360694771484884994
I don't expect English professors to be constitutional scholars, but the "we can invoke the 14th Amendment!" talk is exceptionally silly
1️⃣ A legislature designating a punishment for a person without a trial is known as a Bill of Attainder

Bills of Attainder are expressly prohibited by the Constitution

https://constitutioncenter.org/interactive-constitution/full-text
"BUT WAIT!" your exclaim

"The 14th Amendment is an amendment! So maybe it amended the Bills of Attainder clause!"

Me:
2️⃣ There is nothing in the text of the Fourteenth Amendment, and nothing in the legislative history of the Fourteenth Amendment's adoption by Congress to forward to the states, giving Congress new powers to pass Bills of Attainder
3️⃣ There is nothing in the historical practice of the Congress in the 153 years since the Fourteenth Amendment was ratified suggesting Congress thought it got new powers to pass Bills of Attainder
4️⃣ *But even if we pretend* that 2️⃣ and 3️⃣ aren't there, the text of the Fourteenth Amendment makes clear it can't be invoked by a mere majority of the Senate

This is the text. Notice the last line:

https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv
A majority of Congress can't put something "out of reach" of a majority of itself or a majority of any future Congress

Doing so is called "legislative entrenchment" and it's unconstitutional
So if only a 2/3 supermajority of both the House and the Senate are the only way to "remove such disability" – the 14th Amendment's own words! – then a mere majority of just the Senate can't enact that disability

Doing so would put the matter "out of reach" of another majority
Again, sane lawyers whose livelihoods aren't dependent on Twitter clout know this

It's been clear for over 150 years

Stop getting your political and legal advice from English professors
Idk if the grifters believe it, but a lot of the laypeople believe it because the grifters tell them it's possible

I doubt any of them think through the repercussions of it https://twitter.com/jdrasin/status/1360733924087980036
In that case you're dealing with a separate section of the text that provides a specific exception to the general rule: Article III Section 1 gives judges life tenure that can only be undone via impeachment and removal, which is expressly 2/3 vote under Article I Section 3 https://twitter.com/kithrup/status/1360735516585390081
Yes? 😂

Calling a Bill of Attainder a "resolution" doesn't make it not a Bill of Attainder

I've written on the Substance Over Form doctrine before: https://twitter.com/i/events/832445966519300097

You're affirming my point https://twitter.com/riwoche/status/1360737959926919175
#Law140: the Substance Over Form Doctrine

https://twitter.com/i/events/832445966519300097
The now-deleted tweet quoted in the preceding tweet:
Here you go: https://twitter.com/snailmamalovesu/status/1360740601055051783
To the extent that's even possible, sure 😂 https://twitter.com/dmschmeyer/status/1360742244228112388
On that one, we don't know. A majority of either chamber can block someone from being seated for not meeting the qualifications of office, but SCOTUS held in Powell v McCormack such a block is limited to the enumerated quals (age, residency, elected by the ppl of the district) https://twitter.com/maxfrombk/status/1360743590247424000
Listen to Neal's segment, he expressly notes the requirement for a court process

Congress can pass a special "Insurrection Commission" bill creating a special court / prosecutor / judges to address the issue, and anyone convicted would be barred

But Congress can't decree it https://twitter.com/mdurkin86/status/1360743187904626688
Majority of both chambers (which presumes 60 votes in the Senate for cloture) and signature by the President https://twitter.com/pasqualiba/status/1360750867276775428
It wouldn't be Congress doing anything in that scenario. You'd either have the applicable state elections authority barring ballot access (forcing Trump to sue to argue it doesn't apply), or a competitor typically has standing to sue to block inclusion of unqualified candidates https://twitter.com/jhbthree/status/1360749752007204865
I view it as a both-and scenario, not either-or

Good political hygiene requires having backstops for people like MTG who get elected https://twitter.com/briantcairns/status/1360751600717946885
Bills of Attainder are legislative enactments; they're prohibited via Article I, which lays out the limits on Congress

Military tribunals are an Executive / Article II power flowing from the President's role as commander-in-chief

1/ https://twitter.com/outpostpolly/status/1360735016762953736
So punishments by a tribunal are allowed, so long as they don't violate some other aspect of the Constitution (e.g. the entitlement to due process under the Fifth Amendment)

2/2
@OutPostPolly
That's up to the US Department of Justice

Article I Section 3 provides that officials "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law"

It's unlikely Trump is tried for political reasons, but he could be https://twitter.com/earacheeye/status/1360734122658979842
Only a couple so far as I've seen. A good number of them blocked me after that time a week or two ago that he threatened to sue me for defamation https://twitter.com/juliemfaenza/status/1360756998061572096
In practice, yes

In origin, they're a power delegated from the Legislative ("The Congress shall have Power ... To establish a uniform Rule of Naturalization") to the Executive via the Immigration and Nationality Act https://twitter.com/briandeconinck/status/1360759009754701827
From a functional / legal standpoint, no. All that matters from that standpoint is the outcome to convict or acquit

It may matter from a politics / optics standpoint in the eyes of public opinion though https://twitter.com/violiav/status/1360759312575045632
The Judicial Branch, via conviction on charges brought by the Executive Branch

Whether that occurs as part of our standard process, or a special process that Congress passes into law with Biden's signature, is up to them https://twitter.com/rodino_1974/status/1360762350735921155
They do, the courts have just held that the due process standards are lower for noncitizens, there's no right to counsel for civil proceedings, etc https://twitter.com/uiri00/status/1360762541362737156
You're certainly fine to make that argument

We're not going to agree https://twitter.com/briantcairns/status/1360762562854461440
Of course I am lol https://twitter.com/nnvestr/status/1360765986819964929
If that helps you sleep at night, believe what you want

I'm a Constitutionalist. The Constitution says insurrectionists don't get to hold office

You don't like it, have the document amended instead of whining about "elites" https://twitter.com/briantcairns/status/1360767785635373056
There's no straw man. Calling a Bill of Attainder "a resolution" doesn't change it from being a Bill of Attainder

The Substance Over Form doctrine is settled law: https://twitter.com/i/events/832445966519300097

You, and Seth Abramson, are wrong https://twitter.com/awbeckham66/status/1360767477932691456
Turnipism is contagious. Seth caught it awhile ago https://twitter.com/ouroboredom/status/1360774053351591936
There's no requirement for a *criminal* punishment; a prohibition is still a punishment, and still a Bill of Attainder

But as I said, even if we pretend it weren't, the vote thresholds make clear it's not something a majority of one chamber can do https://twitter.com/thateljefe/status/1360801216536735750
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