Opinion | Think Trump will be disqualified from running? Think again. – The Washington Post
If you are hoping that Donald Trump is disqualified from running for president, don’t count on it. As a legal matter, it’s unlikely — not impossible but unlikely — that courts will invoke Section 3 of the 14th Amendment to keep the former president off the ballot. And as a policy question, though another Trump presidency would pose a great danger to democracy, invoking this once-obscure corner of the Constitution to stop Trump would also be dangerous.
But this is Section 3’s moment in the national spotlight. The issue is starting to make its way through the legal process — headed, perhaps, to a Supreme Court that will be reluctant to referee another high-stakes election dispute. As that unfolds, here is everything you never thought you’d need to know about this 155-year-old provision.
I’ve never heard of Section 3. What is it?
Section 3 is part of the 14th Amendment, which famously guarantees the people due process and equal protection of the law. The provision was enacted to deal with the problem of former officials who, violating the oaths they had taken to uphold the Constitution, served the Confederacy, and were nonetheless returned to national and state office after the Civil War.
It provides: “No person shall … 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 … 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. But Congress may by a vote of two-thirds of each House, remove such disability.”
How has Section 3 been used?
Not often. As the Congressional Research Service has explained, “Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members.” After weighing individual amnesty requests, Congress passed two laws, in 1872 and 1898, granting blanket dispensation to nearly all those covered by the prohibition. In 1919, Congress used Section 3 to refuse to seat a socialist congressman accused of having given aid and comfort to Germany during the First World War.
And that was it — until Jan. 6, 2021. In the aftermath of the attack on the Capitol, efforts seeking to disqualify members of Congress and other elected officials for supporting the insurrection were launched in several states.
In Georgia, Secretary of State Brad Raffensperger rejected a Section 3 challenge to Republican Rep. Marjorie Taylor Greene, saying that her fitness for office “is rightfully a question for the voters of Georgia’s 14th Congressional District.” The only successful challenge came in New Mexico, where a state court removed a county commissioner from office for participating in the Capitol riot.
In North Carolina, a group of voters filed a petition with the State Board of Elections to block then-Rep. Madison Cawthorn (R) from appearing on the ballot, claiming he was involved in planning or encouraging the attack on the Capitol. Cawthorn sued in federal court, arguing that the 1872 amnesty applied prospectively to those accused of insurrection in the future, not just their Confederate forebears.
A federal appeals court disagreed, but the case fizzled out after Cawthorn lost the primary. But that ruling — if followed by other courts — removes an avenue that could be helpful to Trump in dealing with Section 3 challenges.
The language of Section 3 — “engaged in insurrection” — sure looks as if it could apply to Trump.
Maybe, maybe not. One fundamental question is whether Section 3 by itself can be used to disqualify candidates — in legal terms, whether it’s “self-executing” — or whether Congress needs to pass legislation to put it into effect.
There’s scant precedent on this question. The Supreme Court itself has never decided a Section 3 case. But Chief Justice Salmon P. Chase, ruling on a habeus corpus motion in the days when justices “rode circuit,” ruled in 1869 — the year after the 14th Amendment was ratified — that Section 3 requires enabling legislation.
The ruling, Griffin’s Case, involved a formerly enslaved Black man who argued that his conviction for assault with intent to kill was void because the presiding judge had served in the Confederacy and therefore should have been disqualified under Section 3. Chase found that the just-enacted 14th Amendment did not automatically bar the judge from serving. Instead, he wrote, “legislation by Congress is necessary to give effect to the prohibition, by providing for such removal.” After the Griffin ruling, Congress passed such legislation but later repealed it.
The Chase opinion isn’t binding, and legal scholars differ about whether it is correct. (Just a few months earlier, Chase, sitting as a trial judge, had ruled the other way when former Confederate president Jefferson Davis argued that the punishment imposed by Section 3 barred his trial on treason charges.)
In a forthcoming law review article that has rekindled the Section 3 debate, two conservative law professors and originalist scholars, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, contend that the constitutional language is clear. Griffin’s Case, they write, “is just wrong” and shouldn’t be followed.
“Where a constitutional legal disqualification exists, it simply exists,” Baude and Paulsen argue. “It is a binding rule of constitutional law,” just like other constitutional rules (e.g., a president must be 35) that don’t require implementing legislation.
That’s compelling, but other scholars, including conservatives, disagree. Responding to Baude and Paulsen, Josh Blackman of the South Texas College of Law Houston and Seth Barrett Tillman of the National University of Ireland Maynooth assert that disqualifying Trump from office would require legislation. “Where positions other than members of Congress are at issue,” they write, “enforcement of Section 3 requires statutes, which can only be supplied by Congress.”
And yet, the fact that Section 3 specifically provides for a congressional mechanism to undo disqualification — through a two-thirds vote of both houses — would seem to suggest that disqualification itself does not require anything more. Still, if judges confronted with the issue are searching for an off-ramp, sticking with the result in Griffin’s Case offers a tempting exit.
Another hurdle: Does Section 3 even apply to presidents?
In the kind of hairsplitting question that only lawyers can love, there is also a raging debate about whether the president is an “officer of the United States” for purposes of Section 3. Blackman and Tillman make the argument that although the presidency is an “office,” the president is not an “officer of the United States,” a term reserved for appointed officials. They note that Chief Justice John G. Roberts Jr., in a 2010 case, wrote, “The people do not vote for the ‘Officers of the United States.’”
Former attorney general and federal judge Michael B. Mukasey backed this view in a Wall Street Journal op-ed this month. “Because the Insurrection Clause applies only to those who have taken an oath ‘as an officer of the United States,’” Mukasey wrote, Trump “can’t be barred by that clause from serving in any capacity.”
That argument makes little sense; it would mean the president and vice president are not covered by Section 3, even though they occupy the highest rungs of government. As Indiana University law professor Gerard N. Magliocca wrote in a 2020 article, “practically speaking, Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.”
But the position that presidents are immune from Section 3 might appeal to a court looking for a way out.
Assuming Section 3 applies, is Trump disqualified from holding office?
Baude and Paulsen are convinced that “the case is not even close” when it comes to Trump. “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment,” they write. They point to the post-riot impeachment proceedings, in which “majorities of both houses of Congress … determined — at least twice — that January 6th was an insurrection; and … determined that Trump was responsible for having incited that insurrection.” And they argue that Section 3 “covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support.”
But there is a specific federal crime of insurrection, which applies to “whoever incites … assists, or engages in any rebellion or insurrection against the authority of the United States” and specifically provides that anyone convicted “shall be incapable of holding any office under the United States.”
And neither Trump nor any of the Jan. 6 defendants have been charged under this statute, as Stanford law professor and former federal appeals court judge Michael McConnell observed last month. “It is not obvious,” he wrote, “that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.”
What happens now?
The questions are beginning to percolate in various states and in various ways. In Colorado, a group of voters is suing in state court, seeking “an order declaring Trump constitutionally disqualified from public office under Section 3” and instructing the secretary of state to keep him off the ballot. A similar lawsuit has been filed in Minnesota, where the secretary of state has said the office does not have authority to investigate candidates’ eligibility. In California, state legislators are pressing Attorney General Rob Bonta to go to court to have Trump declared ineligible.
There are practical hurdles to these efforts. Some courts might decide that those challenging Trump’s legitimacy don’t have legal standing to sue or that their claims are not yet ripe. But it’s a fair bet this issue is not going away, and there is a reasonable chance it will make its way to the high court.
Adam Unikowsky, who has argued cases before the Supreme Court, put the overall chances of Trump’s disqualification at an unsettling 10 percent. If the high court gets to the merits of Trump’s eligibility, “I think this is a coin flip,” he wrote this month. “I’m assigning a 10% overall chance that the Court finds Trump eligible, and a 10% overall chance that it finds him ineligible. A 10% chance of ineligibility seems really high. But Section Three says what it says. On January 6, 2021, Trump did what he did.”
What should happen?
Baude and Paulsen contend that officials at every level and branch of government have the authority — in fact the duty — to apply Section 3; not to wait for court rulings but to take action on their own initiative. “No official should shrink from these duties,” they write. “It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three. … The Constitution is not optional and Section Three is not an optional part of the Constitution.”
This is a policy point more than a legal one, but that approach seems like a recipe for partisan chaos. Do we really want local election officials to make these determinations? Tens of millions of Americans support Trump. Should they be blocked from exercising that choice?
Baude and Paulsen sketch out scenarios under which an already elected president would be disqualified or removed from office. “If a candidate for President, or an already-elected President, is constitutionally disqualified from office by Section Three, then that disqualification should be enforced by state election officials, by electors, by Congress through the impeachment process, and by the Vice-President, cabinet [and] Congress in carrying out the Twenty-fifth Amendment,” they write. Imagine the furor that would generate.
Liberal constitutional scholar Laurence H. Tribe and former conservative federal appellate judge J. Michael Luttig, arguing last month that Trump is ineligible under Section 3, acknowledged that carrying out disqualification “could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process.”
Stanford’s McConnell, for whom Baude served as a law clerk, sees more of a downside. “I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot,” he wrote. “Imagine how bad actors will use this theory. If that is what Section 3 necessarily means, we have to live with it. But in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent. In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.”
Trump poses an extreme menace. But Section 3 represents an extreme solution. Another Trump defeat, at the hands of voters, not by the dictates of election officials or judges, would be a far better one.