Recently some people have started making the argument that former President Donald Trump is barred from running for president by the 14th Amendment, one of the Reconstruction Amendments ratified in 1868 three years after the end of the Civil War.

These Trump critics rely on the first sentence of Section 3 of that amendment, which provides:

No person shall be a Senator or Representative in Congress, or elector of President and 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 as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 

The critics claim that Trump can’t be president because he participated in an “insurrection or rebellion.” A lawyer has even filed a lawsuit in Florida seeking to disqualify Trump from appearing on the ballot in that state, relying on this portion of the 14th Amendment.

The people making this argument are wrong.

First, Trump has never been convicted in any court of law or by Congress at the conclusion of the second impeachment proceeding of participating in an insurrection or rebellion. 

As John Yoo and Robert Delahunty recently pointed out in an essay in The Federalist, “The Senate’s acquittal is the only official finding by a federal or state institution on the question of whether Trump committed insurrection.”

Moreover, they correctly note that no prosecutor has even charged Trump with insurrection or rebellion in any court, including special counsel Jack Smith in his recent criminal indictment of Trump. 

Second, as I have previously written in a Heritage Foundation report, it is highly doubtful that the disqualification clause is still valid. The second sentence in that section, which Trump critics conveniently ignore, provides: “But Congress may by a vote of two-thirds of each House, remove such disability.” (The Daily Signal is The Heritage Foundation’s news outlet.)

In other words, Congress was given the power in the amendment itself to remove the disability imposed by the 14th Amendment, a unique power that doesn’t exist in any other amendments. Importantly, Congress did exactly that in 1872 and 1898.

Congress passed an amnesty act in 1872 with the required two-thirds vote removing all “political disabilities” imposed by Section 3 except for members of the 36th and 37th Congresses, as well as “heads of departments, and foreign ministers of the United States” and “officers in the judicial, military and naval services.” 

In 1898, even these exceptions were removed by Congress in a second amnesty act stating that the “disability imposed by section 3 … heretofore incurred is hereby removed.” There was no language preserving any of the disqualifications for any future cases.

Third, the argument that state officials can prevent Trump or any other member of Congress from holding office because of what happened on Jan. 6 is belied by the presidential qualifications clause of the Constitution (Art. I, Sec. 3, Cl. 3) which sets out three qualifications to be president. You have to be a “natural born citizen,” at least “thirty-five years” old, and “been fourteen years a resident” of the U.S. 

The Constitution has similar qualifications clauses to be a senator or representative. When states tried to impose term limits on members of Congress, the Supreme Court held in 1995 in U.S. Term Limits, Inc. v. Thornton that states could not impose any additional qualifications on any candidate running for Congress.

The same principle applies to anyone running for president. Even if those pushing disqualification could convince a court that the two amnesty acts did not void Section 3 of the 14th Amendment and that it doesn’t matter that there has been no charge or conviction for “insurrection or rebellion,” it is not state officials who have the authority to make such a determination. That would be up to Congress.

As Yoo and Delahunty point out, “allowing a single state to wield this much power over the federal government runs counter to broader federalism principles” and would “throw our electoral system into chaos.”

When California tried to impose a requirement on presidential candidates (obviously aimed at Trump) requiring them to publicly disclose their tax returns, the California Supreme Court unanimously struck it down in 2019. States cannot add additional qualifications above and beyond those in the Constitution.

By the way, as a matter of constitutional law, even if Trump is convicted in any of the indictments that have been filed against him, that would not prevent him from running for, and serving as, president if he is elected.

Whether you love him or hate him is irrelevant; as long as he meets the three qualifications laid out in Article II (which he obviously does), he can serve as president unless and until he is impeached by the House of Representatives and convicted by the Senate.

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