Trump may face a historic legal struggle over the 14th Amendment’s “insurrection clause” if he wants to be on ballots in all 50 states next year.
A growing number of Democrats and anti-Trump Republicans argue that Trump’s efforts to sabotage the 2020 election and his role in fueling the attack on the Capitol on January 6, 2021 render him ineligible to occupy office again under this rarely invoked clause.
The theory might be put to the test in two different ways. The filing of legal challenges seeking judicial pronouncements that Trump is ineligible to run is one tactic. This tactic is in its infancy, with just two anonymous plaintiffs filing suit in New Hampshire and Florida in the past few days.
The alternative is for one or more states to accept the notion explicitly and refuse to name Trump on their ballots, which would be politically riskier. This could prompt Trump to launch lawsuits in those states asking judges to reinstate his candidature. While secretaries of state from throughout the country are contemplating whether or not to remove Trump from the ballot, no state has taken action to do so as of yet.
In either case, the insurrection clause, a lengthy 110-word phrase passed in 1868 and rarely interpreted — or even used — since then, may be thrown into an unsettled dispute in the courts and, most likely, the Supreme Court.
The 14th Amendment theory is explained here.
Can you explain the insurrection provision?
Any person who has “engaged in insurrection or rebellion” after taking an oath to uphold the Constitution cannot occupy public office under this provision. After the Civil War, the South wanted to make sure they couldn’t send any former Confederate officers to Washington, so they included a provision to that effect in the 14th Amendment.
The relevant words are found in the third part of the amendment and read as follows:
“No person who, having 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 the executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or retaliation, 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.” But Congress may remove such impediment with a vote of two-thirds of each House.”
The legal scholars who argue that this provision applies to Trump argue that Trump’s disqualification is “self-executing,” meaning that it applies to him without any further action being required (such as a conviction for a crime related to the insurrection) if he meets the criteria described in the amendment. Amnesty must be granted by Congress with a two-thirds vote in each chamber in order to bypass the ineligibility.
Who has supported this idea?
In recent weeks, a number of well-known constitutional academics have publicly stated their belief that Trump is unqualified to serve as president again on the basis of the 14th Amendment.
In 2019, the University of Pennsylvania Law Review will publish an article by conservative law professors William Baude and Michael Stokes Paulsen. In their view, the provision is written so as to “embrace a broad range of willful participatory conduct” as constituting having “engaged in” insurrection or rebellion. They point to Trump’s efforts to put pressure on then-Vice President Mike Pence to stop the counting of electoral votes and his “incendiary” address inciting supporters to march on the Capitol on January 6 as evidence that Trump’s actions plainly fit the criteria.
Conservative former federal judge J. Michael Luttig and liberal constitutional law professor Laurence Tribe agree on something. They wrote in the Atlantic last month that the ex-president is no longer eligible to serve as president because his attempts to overturn the 2020 presidential election and the following attack on the U.S. Capitol bring him squarely inside the scope of the exclusion clause.
Can you explain the other viewpoint?
However, not all legal experts agree with these readings of 14th Amendment, section 3. Critics of the current interpretations claim that the language of the amendment is being unduly broadly interpreted, and that the criminal justice system should be used to bar someone from taking office if they were a part of an insurrection.
Professor Michael McConnell of Stanford Law School, for example, has warned against a “too loose” construction of the Article, arguing that the phrases “insurrection” or “rebellion” should apply to “only the most serious of uprisings against the government,” such as the Civil War.
Some have voiced worry that secretaries of state setting a precedent of disqualifying candidates at their own discretion could be perceived as anti-democratic. And there might be political repercussions from trying to remove Trump; doing so might provoke a backlash from his followers.
If the 14th Amendment were actually implemented, how would it work?
It would probably need to be enforced by legal action. The candidate who is directly hurt by Trump’s presence on the ballot is the one who is running against Trump in the Republican primary or the general election. His eligibility to appear on the ballot in a given state could be challenged in court by interest groups or individual voters.
Republican long shot John Anthony Castro has recently launched a lawsuit in New Hampshire claiming that Trump’s candidature violates the 14th Amendment and asking for an injunction to prevent Trump from appearing on the state’s ballot. A tax attorney in Florida also filed a federal lawsuit against Trump, claiming that his role in the events of January 6 render him ineligible to serve as president under the 14th Amendment.
Another option is for the secretary of state to proactively disqualify him from voting, which would almost surely result in a lawsuit from Trump. A few secretaries of state have already hinted that they might give the provision some thought. Secretary of State Jocelyn Benson of Michigan has stated her intention to discuss the matter with her counterparts in other swing states.
In the summer, Free Speech for People, a legal advocacy group, wrote to the secretaries of state and chief election officials in nine states, arguing that the 14th Amendment forbids them from allowing Donald Trump to appear on their ballots. They said that Trump should be barred from holding public office because he “violently attacked Congress to prevent the certification of democratic election results.”
There will be several appeals filed on this subject, either by Trump’s campaign or by a conservative organisation. The Supreme Court would undoubtedly hear his case if there was a real attempt to prevent him from voting.
It’s already causing friction in the Granite State. Republican 2020 U.S. Senate nominee Bryant “Corky” Messner, an attorney who received Trump’s backing, met with New Hampshire Secretary of State David Scanlan to inquire about Trump’s ability to vote. Republicans John Formella, New Hampshire’s attorney general, and Senator Maggie Hassan (who chairs the Senate Judiciary Committee) issued a joint statement after meeting with Scanlan in which they said Formella’s office “is now carefully reviewing the legal issues involved.”
Republicans in the state, according to its chair, would “fight to make sure that candidates are not denied access to the ballot.”
How well or poorly have courts dealt with the 14th Amendment theory?
The third provision of the 14th Amendment has rarely been tried in court in the century and a half since it was ratified, and never against a former president.
The insurrection clause was cited in court challenges brought after January 6 by Free Speech for People against Republican Representatives Marjorie Taylor Greene (R-Ga) and Madison Cawthorn (R-N.C.). Greene was cleared to run for reelection when an administrative law court ruled that she had not taken part in the rebellion on January 6.
A federal appeals court decided against Cawthorn, but by that time he had already lost the primary election.