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Politics Foreign Affairs Culture Fellows Program

Trump and the Fourteenth Amendment Gambit

This use of the Fourteenth Amendment is simply another attempt at politically decapitating Donald Trump instead of beating him at the ballot box.

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Credit: Evan El-Amin

In the developing world, the party in power does away with its opponents in one of three ways: a bullet to the face, chucking them in jail, or kicking them off the ballot. It's good to see that America is already at work on two of the three.

With it becoming ever-clearer that nothing in the courts is likely to stop Trump—polls show he can still win as a convicted felon from a jail cell—attention has turned to the third dirty solution, driving him off the ballot in as many states as possible to enable a Joe Biden walk-on win. The vehicle for this is supposedly the Fourteenth Amendment, Section Three.

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Section Three was ratified in 1868 following the Civil War as a way to keep former Confederate officials out of government. It reads in whole: 

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. But Congress may by a vote of two-thirds of each House, remove such disability. (Emphasis added.)

The obvious ploy is to claim Trump engaged in some sort of insurrection on January 6 and thereby disqualified himself from being president; his name should be automatically removed from all ballots. 

Easier said than done. This use of the Fourteenth Amendment is malarkey, will not succeed, and is simply another attempt at politically decapitating Donald Trump instead of beating him at the ballot box.

The problems with the Fourteenth Amendment strategy begin with the question of whether the prohibition still exists. Written in 1868 to affect Confederate officials, the Section was overturned by Congress on behalf of several individuals. They could do the same for Trump. The disabilities were removed in 1872 from “all persons except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.” A later Congress voted to remove the penalties wholesale. 

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Further standing in the way of actually using the disqualification section against Trump is the 1969 Supreme Court decision in Powell v McCormack, which held that a state “cannot require of a congressional candidate declarations of loyalty, or affidavits averring lack of intent to seek forcible overthrow of the government.” The ruling clarified that any requirements for office other than those listed in Article I were unconstitutional: “Loyalty to the United States or to its government is not listed as one of the standing qualifications for membership in Congress.”

Is Trump subject to Section Three? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office in 2017. Section Three of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an existing “Officer of the United States.”

Also left undefined is the standard of proof for “insurrection.” As a crime, insurrection has its legal definition. Trump, however, is not charged with insurrection (or sedition or rebellion) in any of the cases he now faces.

The Fourteenth Amendment in its Section One also provides for due process, of which the adherents of Section Three prescribe none, claiming the section is self-enacting and needs no enabling legislation or procedure.

Section Three remained largely dormant for many decades. January 6, and a Pennsylvania Law Review article claiming Trump doesn’t qualify to serve as president under the section, have prompted renewed interest in the provision and its on-again-off-again history. Active Section Three challenges to specific candidates have been brought in Indiana, Wisconsin, North Carolina, Georgia, Arizona, and New Mexico, with contested offices ranging from County Commissioner to Senator (but not yet Trump.)

Issues have emerged, including whether Section Three has been repealed, whether Congress has sole power to disqualify its members, whether voters have standing to challenge under Section Three, and questions of subject matter jurisdiction and federalism. Absent action by Congress (in process, though not expected to succeed), the arguments over Section Three demand either that the whole thing be forgotten to history where it belongs, or that the Supreme Court step in to sort out the significant legal issues, not the least of which is state versus federal power.

If you are keeping track of steps into the abyss, take a look at the rotten core of what some current legal thinkers believe is possible and, indeed, desirable: “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.” 

This seems instead like something for voters to decide, not out-of-context legalese from a previous century. This isn’t public policy, or even sound jurisprudence. This is a politicized legal fight. Sound democratic to you?