As state court proceedings get under way in Colorado, Michigan and Minnesota in lawsuits aimed at barring Donald Trump from appearing as a presidential candidate on the ballot in next year’s presidential election, the judges in those cases should understand that the text, history, and application of the 14th Amendment make it clear that they have no legal authority to take any such action.
Due to Trump’s supposed actions on Jan. 6, 2021, the challengers are trying to argue that Section 3 of the 14th Amendment, the disqualification clause, prevents him from being president even if he is elected, so he should be removed from the ballot by state election officials.
Section 3 provides that:
No person shall be a Senator or Representative in Congress, or elector for President and Vice President, or hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same … . But Congress may, by a vote of two-thirds of each House, remove such disability.
Because Trump allegedly engaged in an insurrection, according to the challengers, he is disqualified by Section 3.
There are three major legal problems with that claim, however.
Trump Didn’t Hold An Applicable Office
First of all, Section 3 only applies to individuals who were previously a “member of Congress,” an “officer of the United States,” or a state official. Trump has never been any of those.
He has never held state office or been a U.S. senator or representative, and the U.S. Supreme Court held in 1888 in U.S. v. Mouat that “officers” are only those individuals who are appointed to positions within the federal government.
Individuals who are elected—such as the president and vice president—are not officers within the meaning of Section 3.
The Supreme Court reiterated that view in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board, in which Chief Justice John Roberts concluded “the people do not vote for ‘Officers of the United States.’” They are appointed under Article II of the Constitution.
It must also be noted that while Section 3 applies to an “elector for President or Vice President,” it does not specify that it applies to the president or vice president. This supports the argument that the drafters did not mean for Section 3 to apply to the president and vice president, which, again, is not surprising, since they are not “Officers of the United States.”
No Conviction for ‘Insurrection or Rebellion’
Second, no federal court has convicted Trump of engaging in “insurrection or rebellion” in violation of 18 U.S.C. §2383, which makes it a crime to engage in “any rebellion or insurrection against the authority of the United States.”
More importantly, in the second impeachment resolution of Trump on Jan. 11, 2021, he was charged by the House of Representatives in Article I with “Incitement of Insurrection.” Yet, he was acquitted by the Senate.
Given our federal constitutional system, state and federal courts should not gainsay the findings of Congress on this issue. The risk of inconsistent rulings from state and county election officials, as well as from the many different courts hearing these challenges, could cause electoral chaos.
Further, Congress has never passed a federal statute providing any type of enforcement mechanism in the courts for Section 3. While some argue that this provision is self-executing and no legislation is required, legal scholars such as Josh Blackman and Sett Tillman point to an 1869 decision of a federal circuit court presided over by U.S. Supreme Court Chief Justice Salmon P. Chase, which held that “legislation by Congress is necessary to give effect to” Section 3.
Under that holding, in the absence of such legislation, states do not have the ability to throw accused insurrectionists off a federal ballot, whether they are running for Congress or the presidency.
Section 3 No Longer Extant?
Third, there is an argument that can be made—and which was already adopted by one federal court—that Section 3 doesn’t even exist anymore as a constitutional matter.
Keep in mind that the 14th Amendment was ratified in 1868 after the end of the Civil War. It was aimed at the former members of the Confederate government and military who had previously been in Congress or held executive posts.
All of the challengers filing lawsuits to try to remove Trump from their state ballots are ignoring the final sentence in Section 3, which is a unique provision found in no other amendment to the Constitution. It allows Congress to remove the disqualification clause “by a vote of two-thirds of each House.”
Congress voted to remove the disqualification twice. The Amnesty Act of 1872 stated that the “political disabilities” imposed by Section 3 “are hereby removed from all persons whomsoever” except for members of the 36th and 37th Congresses and certain other military and foreign officials.
Note that there is no time limit in this language.
Congress even got rid of these remaining exceptions in the Amnesty Act of 1898, which stated that “the disability imposed by section 3 of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.”
There was no language preserving any of the disqualifications for future cases.
In short, these anti-Trump ballot challenges are lawfare at its worst, trying to use the law and the courts as a political weapon. All of these lawsuits should be dismissed.
But if any of these state courts rule against Trump, they should immediately stay their decisions and allow Trump to remain on the ballot.
If they don’t, and their decisions are later overturned by an appellate court after the election when votes have already been cast, there will be no viable remedy.
On the other hand, if their rulings are upheld, then even if Trump won the election, he could still be barred from actually serving, although I seriously doubt that the ultimate decider on this issue, the U.S. Supreme Court, would uphold any such ruling, given the weakness of the challengers’ claims.
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