Could The 14th Amendment Block Trump?
This week: Democratic challenger exaggerates attack on Rick Scott’s Medicare, Social Security plans … Ted Cruz’s false claim about Joe Biden and beer … Fentanyl myths debunked … Border wall gaps explained … A doomsday prepper’s YouTube transformation … No evidence of a mass gravesite for Hawaii wildfire victims
Can the 14th Amendment keep Trump off the ballot? Scholars weigh in.
Former Arkansas Gov. Asa Hutchinson cited "conservative legal scholars" at the first GOP debate when he said former President Donald Trump "may be disqualified under the 14th Amendment from being president again as a result of the insurrection."
Legal and political scholars are discussing the possibility.
This summer, two conservative law professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — published a paper in which they argued there’s "abundant evidence" that Trump participated in an insurrection. They said the evidence includes a plan to get Congress to count phony, pro-Trump electoral slates, an effort for which Trump was indicted; intimidation of election officials; encouragement for Capitol marchers; and failure to urge the rioters to leave until hours after they had breached the building.
This argument was echoed in a different article by conservative former judge J. Michael Luttig and liberal Harvard law professor Laurence Tribe.
The 14th Amendment is best known for enabling African Americans to become United States citizens. Section 3 says no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
The provision was most frequently applied immediately after the Civil War. But, in 1872, Congress granted amnesty to most officials covered in the section covered by the section, and in 1898, another statute lifted the remaining prohibitions.
Section 3 was rarely invoked in the 20th century, but legal experts said it could still carry weight. Already, in a 2022 case involving then-Rep. Madison Cawthorn, R-N.C., a federal appeals court ruled that the provision is not limited to the post-Civil War era and could be used today.
Ultimately, the decision to keep Trump from the ballot likely would hinge on one or more state elections officials deciding to take that action.
Trump’s campaign would then sue, and whichever side loses likely would appeal, said Richard Pildes, a New York University law professor. The case could head to the Supreme Court, which would be able to determine a binding national answer and rule out the possibility that Trump would be kept off the ballot only in certain states.
The idea of using the 14th Amendment is gaining traction in real-world politics. In New Hampshire, for example, Republican Corky Messner — a 2020 GOP Senate nominee Trump had endorsed — raised the issue with Secretary of State David M. Scanlan. This prompted Scanlan and state Attorney General John Formella, both Republicans, to release a joint statement saying that Formella’s office "is now carefully reviewing the legal issues involved."
— Louis Jacobson
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This week: Democratic challenger exaggerates attack on Rick Scott’s Medicare, Social Security plans … Ted Cruz’s false claim about Joe Biden and beer … Fentanyl myths debunked … Border wall gaps explained … A doomsday prepper’s YouTube transformation … No evidence of a mass gravesite for Hawaii wildfire victims
A weekly note from the managing editor of
(AP)
Can the 14th Amendment keep Trump off the ballot? Scholars weigh in.
Former Arkansas Gov. Asa Hutchinson cited "conservative legal scholars" at the first GOP debate when he said former President Donald Trump "may be disqualified under the 14th Amendment from being president again as a result of the insurrection."
Legal and political scholars are discussing the possibility.
This summer, two conservative law professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — published a paper in which they argued there’s "abundant evidence" that Trump participated in an insurrection. They said the evidence includes a plan to get Congress to count phony, pro-Trump electoral slates, an effort for which Trump was indicted; intimidation of election officials; encouragement for Capitol marchers; and failure to urge the rioters to leave until hours after they had breached the building.
This argument was echoed in a different article by conservative former judge J. Michael Luttig and liberal Harvard law professor Laurence Tribe.
The 14th Amendment is best known for enabling African Americans to become United States citizens. Section 3 says no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
The provision was most frequently applied immediately after the Civil War. But, in 1872, Congress granted amnesty to most officials covered in the section covered by the section, and in 1898, another statute lifted the remaining prohibitions.
Section 3 was rarely invoked in the 20th century, but legal experts said it could still carry weight. Already, in a 2022 case involving then-Rep. Madison Cawthorn, R-N.C., a federal appeals court ruled that the provision is not limited to the post-Civil War era and could be used today.
Ultimately, the decision to keep Trump from the ballot likely would hinge on one or more state elections officials deciding to take that action.
Trump’s campaign would then sue, and whichever side loses likely would appeal, said Richard Pildes, a New York University law professor. The case could head to the Supreme Court, which would be able to determine a binding national answer and rule out the possibility that Trump would be kept off the ballot only in certain states.
The idea of using the 14th Amendment is gaining traction in real-world politics. In New Hampshire, for example, Republican Corky Messner — a 2020 GOP Senate nominee Trump had endorsed — raised the issue with Secretary of State David M. Scanlan. This prompted Scanlan and state Attorney General John Formella, both Republicans, to release a joint statement saying that Formella’s office "is now carefully reviewing the legal issues involved."
— Louis Jacobson
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Fact-checks of the week
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View this email in your browser
This week: Democratic challenger exaggerates attack on Rick Scott’s Medicare, Social Security plans … Ted Cruz’s false claim about Joe Biden and beer … Fentanyl myths debunked … Border wall gaps explained … A doomsday prepper’s YouTube transformation … No evidence of a mass gravesite for Hawaii wildfire victims
A weekly note from the managing editor of
(AP)
Can the 14th Amendment keep Trump off the ballot? Scholars weigh in.
Former Arkansas Gov. Asa Hutchinson cited "conservative legal scholars" at the first GOP debate when he said former President Donald Trump "may be disqualified under the 14th Amendment from being president again as a result of the insurrection."
Legal and political scholars are discussing the possibility.
This summer, two conservative law professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — published a paper in which they argued there’s "abundant evidence" that Trump participated in an insurrection. They said the evidence includes a plan to get Congress to count phony, pro-Trump electoral slates, an effort for which Trump was indicted; intimidation of election officials; encouragement for Capitol marchers; and failure to urge the rioters to leave until hours after they had breached the building.
This argument was echoed in a different article by conservative former judge J. Michael Luttig and liberal Harvard law professor Laurence Tribe.
The 14th Amendment is best known for enabling African Americans to become United States citizens. Section 3 says no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
The provision was most frequently applied immediately after the Civil War. But, in 1872, Congress granted amnesty to most officials covered in the section covered by the section, and in 1898, another statute lifted the remaining prohibitions.
Section 3 was rarely invoked in the 20th century, but legal experts said it could still carry weight. Already, in a 2022 case involving then-Rep. Madison Cawthorn, R-N.C., a federal appeals court ruled that the provision is not limited to the post-Civil War era and could be used today.
Ultimately, the decision to keep Trump from the ballot likely would hinge on one or more state elections officials deciding to take that action.
Trump’s campaign would then sue, and whichever side loses likely would appeal, said Richard Pildes, a New York University law professor. The case could head to the Supreme Court, which would be able to determine a binding national answer and rule out the possibility that Trump would be kept off the ballot only in certain states.
The idea of using the 14th Amendment is gaining traction in real-world politics. In New Hampshire, for example, Republican Corky Messner — a 2020 GOP Senate nominee Trump had endorsed — raised the issue with Secretary of State David M. Scanlan. This prompted Scanlan and state Attorney General John Formella, both Republicans, to release a joint statement saying that Formella’s office "is now carefully reviewing the legal issues involved."
— Louis Jacobson
Forward
Fact-checks of the week
We follow the facts and share what we learn so you can make your own decisions. Support our mission today.
Fentanyl myths debunked
Fentanyl kills. More than 70,000 people nationwide died last year after overdosing on the powerful synthetic opioid. The drug has drawn national attention because it’s so lethal, but has also sparked a torrent of misinformation. Because experts say setting the record straight on how people interact with fentanyl and can overdose is crucial, PolitiFact and The Dallas Morning News delivered the truth behind four common myths about fentanyl.
Read the story by PolitiFact Staff Writer Maria Ramirez Uribe in English or Spanish. The Dallas Morning News, which powers PolitiFact Texas, is spending the month of September on the project “Deadly Fake: 30 Days Inside Fentanyl’s Grip on North Texas.”
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Ask PolitiFact: Why are there gaps in the border wall?
President Joe Biden’s critics claimed to have video and photo evidence that prove Biden has an "open borders" policy. Sen. Ted Cruz, R-Texas, shared a social media post that said "the Biden administration welded open the Trump border wall in Tucson, AZ. It’s not a crisis. It’s by design."
These claims ignore that these stormwater gates are propped open so border wall sections don't topple over during Arizona’s monsoon season, which causes heavy rain, wind and flooding typically from mid-June to the end of September, the National Weather Service said. This opening-the-gates practice started under former President Donald Trump’s administration.
U.S.-Mexico border fencing is built on U.S. soil, so migrants who reach and cross the barriers — including through the stormwater gates — are subject to U.S. immigration laws, a CBP spokesperson said.
On Fox News, host Jesse Watters claimed Biden was “opening holes in the border for antelopes,” apparently referring to the Sonoran pronghorn, which the U.S. Fish and Wildlife Service considers an endangered species. The gates exist to prevent flood damage. But in response to a lawsuit started during the Trump administration, the federal government agreed to keep some gates open to let the Sonoran pronghorn roam the area. The Department of Homeland Security can close these gates temporarily for “border security operations.”
— Maria Ramirez Uribe
From farming to doomsday prepping: How one YouTube channel changed to fuel misinformation
Nearly every week, YouTuber Patrick Humphrey posts videos that stoke fear of impending disaster or claim that a catastrophe has already happened. As of late August, he had more than 91,000 YouTube subscribers, a significant increase from the 6,000-subscriber milestone he marked a year ago.
Humphrey, once a farming content creator, spreads falsehoods using a consistent pattern. First, he makes an inflammatory claim about an emergency or a warning — often beginning with the YouTube video’s title or thumbnail image. His videos employ a misinformation tactic experts say is common: He refers to real events, but sensationalizes and presents them without important context, which misleads viewers or pushes them toward false conclusions.
His videos also have been shared across other social media sites such as TikTok and Facebook, amplifying his reach and contributing to the spread of the misinformation.
Read more about his approach and experts say it is popular among people who spread misinformation.
— Madison Czopek
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Vivek Ramaswamy's False claim about VP's power
This week: Gov. Ron DeSantis on military force and fentanyl … Truths and myths about puberty blockers … Mike Pence’s debt reduction claim … the Fox News debate moderators picture of America … Health care confusion’s consequences … Hillary Clinton wasn’t executed
Vivek Ramaswamy’s “what-I-would-have-done” scenario for Jan. 6, 2021
Entrepreneur Vivek Ramaswamy made headlines at last week’s Republican presidential primary debate in Milwaukee and kept making them. We’ve already checked him on his debate claim that climate policy caused more deaths than climate change (Pants on Fire).
This week, we looked at Ramaswamy’s claim that former Vice President Mike Pence, a fellow GOP presidential candidate, missed a "historic opportunity" to change the U.S. election process on Jan. 6, 2021.
On NBC’s "Meet the Press," Ramaswamy said that if he’d been in Pence’s position, he’d have pushed for single-day voting on Election Day, paper ballots and government-issued IDs checked at polling places.
"In my capacity as president of the Senate, I would have led through that level of reform, then, on that condition, certified the election results, served it up to the president — President Trump then — to sign that into law," Ramaswamy said Aug. 27.
Ramaswamy didn’t explain what legal authority he believes would have enabled that scenario. But, we wondered, “Can a vice president put conditions on the constitutionally mandated certification process and use it to leverage a desired legislative outcome?”
No, experts said, for multiple reasons.
First, vice presidents lack that power. The Constitution makes clear that the joint session is for counting electoral votes, not passing legislation. Also, for Ramaswamy’s scenario to happen, Democrats from both chambers would have needed to cooperate. Rapid passage of what Ramaswamy proposed, given national division over the election results, would have faced steep legal and practical obstacles. Matthew Green, a politics professor at the Catholic University of America, dismissed Ramaswamy’s scenario, saying, “It's not a serious idea.”
The first obstacle is the Constitution’s 12th Amendment, which says, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." Legal experts said this constitutional language meant the vice president’s duty was opening the envelopes with the results, not deciding the outcome.
In theory, Congress has the authority to pass the legislative agenda Ramaswamy outlined on "Meet the Press." But the earliest Congress could have acted would have been after finishing the joint session and separating into two chambers to debate and pass a law, said Gregory Koger, a University of Miami political scientist. Even if that unprecedented scenario had happened, it would have been practically "impossible" to get a majority of the House and three-fifths of the Senate to agree to landmark legislation quickly, Green said.
We rate this statement False.
— Amy Sherman and Louis Jacobson
Would military force at the border stop fentanyl smuggling?
Another post-debate thread centered on presidents’ ability to use military force to stop fentanyl smuggling into the United States. Florida Gov. Ron DeSantis said he’d declare a national emergency and send troops to the U.S. southern border and to Mexico.
"When these drug pushers are bringing fentanyl across the border, that's gonna be the last thing they do," DeSantis said Aug. 23 in Milwaukee. "We’re gonna use force and we’re gonna leave them stone cold dead."
DeSantis didn’t expand on his plans and a campaign spokesperson didn’t answer our questions. PolitiFact examined whether DeSantis’ proposals would limit fentanyl flow into the U.S. We also looked at presidential powers to send troops to Mexico or use lethal force against drug smugglers.
Would troops at either side of the U.S. border stem the amount of fentanyl in the U.S.?
Experts said DeSantis’ plan would do "virtually nothing" to stop the flow of fentanyl. These proposals conflate “the opioid epidemic, the smuggling of fentanyl and the movement of migrants and asylum seekers,” said Katherine Yon Ebright, a constitutional war powers expert at the Brennan Center for Justice, said. Most fentanyl is seized at official ports of entry, not between them, which is where most immigrants try to cross the border, Customs and Border Protection data shows. And in 2022, 89% of convicted fentanyl drug traffickers were U.S. citizens.
When can the U.S. president send troops to Mexico?
The president is authorized to use the military if there is an “imminent attack” and executive branch lawyers have argued that presidents “can direct the use of lethal force" if it is in the national interest, Yon Ebright said. However, that’s if the duration and nature of that use of force is “not likely to lead to war.” Only Congress can declare war under the U.S. Constitution.
Can the U.S. president send troops to the U.S. side of the southern border?
Yes, and it’s been done. President Joe Biden and his predecessors have sent troops to border states to support Border Patrol agents as migration increased. Troops at the border transport these agents, operate and repair surveillance vehicles and clean brush. They neither engage with migrants nor participate in law enforcement, said Joseph Nunn, a Brennan Center expert on the U.S. military’s domestic activities.
Can Border Patrol and the military use lethal force within the U.S.?
Immigration officials may use deadly force, but “only when necessary” in situations in which someone poses “imminent danger of serious bodily injury or death” to the officer or another person. Border Patrol "cannot kill someone solely for entering the United States illegally or carrying drugs," David Bier, immigration studies director at the Cato Institute, a libertarian think tank.
— Marta Campadabal Graus and Maria Ramirez Uribe
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Puberty blockers: truths and myths
Puberty blockers, sadly, aren’t medication to block cringeworthy middle school memories. They are medications, sometimes used by transgender adolescents, to temporarily pause puberty. Rhetoric infuses political debate around gender-affirming care for youth and discussion of puberty blockers. This can generate misinformation. So, PolitiFact worked to cut through the noise and answer some big questions around these controversial drugs.
Q: What are puberty blockers? A: Puberty blockers pause or suppress the body from releasing the hormones that lead to changes in the body that accompany puberty. The most common medication for pubertal suppression are gonadotropin-releasing hormone agonists (GnRHa), which send signals to the pituitary gland to pump the brakes on producing sex hormones such as testosterone and estrogen. GnRHa have been Food and Drug Administration-approved since 1985; since 1981, they have also been used to treat “precocious puberty” which is when kids start going through early puberty — around ages 6 or 7.
Q: At what age are they prescribed? A: Major medical organizations advise that puberty blockers be prescribed only once the first signs of puberty can be seen, called Tanner Stage 2, which is marked by the budding of breasts and an increase in testicular volume. Kids start puberty generally from ages 8 to 14. Puberty blockers don’t reverse development that has already occurred, but they stop further progression, so they make the biggest difference if prescribed in puberty’s earlier stages. This can also prevent the need for gender transition-related surgeries in the future. Q: What are the criteria for getting them? A: The World Professional Organization for Transgender lists criteria that should be met before medical providers prescribe puberty blockers. For example, patients must meet the diagnostic criteria for gender incongruence laid out by the World Health Organization, and that experience must be evident and sustained over time. Adolescents also must demonstrate "emotional and cognitive maturity required to provide informed consent."
Read more of this story. And follow our LGBTQ+ coverage.
— Grace Abels
Fact-checks and stories of the week
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Do you smell smoke?
Here's your Pants on Fire fact-check of the week: A conspiracy-laden video posits that former Secretary of State Hillary Clinton was executed in 2018. She wasn’t.
See what else we've rated Pants on Fire this week.