The Fourteenth Amendment Farce
Any complete and parsimonious reading of the law must conclude that Trump should stay on the ballot.
As part of its relentless lawfare against the former President Trump and his bid for re-election, the left has filed suit in several states to compel election officials in those states to keep him off their presidential primary and general election ballots in 2024. The highly partisan secretary of state in Maine has unilaterally removed Trump from the ballot by administrative decree.
The left argues that the former president is ineligible to run for re-election because he “engaged in insurrection” on January 6 and, as a result, Section 3 of the Fourteenth Amendment to the U.S. Constitution bars him from running for re-election. Thus far, the results of this lawfare are mixed; some wins for the former president, some for his attackers.
Here’s a prediction for the new year: The Supreme Court will quickly and decisively shut down these extraordinary legal assaults. It will keep Trump on the ballot, and it will do so in a way that upholds the law and protects the Court from the ongoing efforts of the left to vilify the institution as partisan and corrupt.
None of the actions to boot Mr. Trump off the ballot have any merit; all are fatally flawed. The legal theories upon which they are based find no support in the text and original meaning of Section 3 of the Fourteenth Amendment, which provides, in relevant part:
No person shall…hold any office…under the United States…who, having previously taken an oath…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….
As a threshold matter, Section 3 does not even apply to the presidency. The textual term “officer of the United States” refers only to appointed officials, not to elected ones. Firmly established Supreme Court precedent is clear that “unless a person…holds his place by virtue of an appointment…he is not…an officer of the United States,” as stated in U.S. v. Mouat (1888).
The final clause of Article VI of the Constitution expressly provides that “all executive…officers…of the United States” shall take an oath to support the Constitution. The presidential oath is separately provided for in the final clause of Section 1 of Article II, and that clause does not describe the president as an officer of the United States. Trump did not take, and therefore did not violate, the Article VI oath referred to in Section 3.
Even if Section 3 did apply to the former president, there is no legal basis for any state election official to conclude that he “engaged in insurrection or rebellion.” Both are serious crimes. Before a person can be said to have committed either one, the requisite facts and violation of law must be proven in the appropriate court of law, and the person convicted. Trump has been charged with many crimes in many different jurisdictions, but he has never been convicted, or even charged criminally, with insurrection or rebellion. During his second impeachment, he was acquitted regarding his actions on January 6. Of the hundreds of other people criminally charged for their activities on January 6, not one of them has been charged, much less convicted, of engaging in insurrection or rebellion.
Finally, even if there was a valid legal basis to conclude that Mr. Trump has engaged in insurrection or rebellion, that still does not empower various state election officials and state courts in different jurisdictions to keep the former president off their ballots for the 2024 election.
That is because the prohibition set forth in Section 3 is a bar to holding office only. Nothing in Section 3 prevents a person covered by its terms, even if guilty of insurrection, from running for office. The constitutional text is clear: “No person shall…hold any office….”
Section 3 is not self-executing. Congressionally enacted enforcement legislation is needed for the section to have legal effect. Section 5 of the Fourteenth Amendment explicitly anticipates such Congressional action by providing that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Salmon Chase, Thaddeus Stevens, and Lyman Trumbull, luminaries intimately involved in the drafting and enactment of the Fourteen Amendment, all agreed that Congress needed to enact legislation establishing an enforcement mechanism.
Congress did so in 1870 when it passed “An Act to Enforce the Fourteenth Amendment,” now codified in 5 U.S.C. 14a. That section of the U.S. Code provides that “Whenever any person holds office…contrary to… [Section 3] …the district attorney…shall…prosecute…the removal of such person from office.” The Congressionally specified enforcement mechanism that brings Section 3 into effect simply does not apply until after a person has been elected and takes office.
Lawyers for Mr. Trump and the Colorado GOP are appealing the Colorado decision to the U.S. Supreme Court. The text of Section 3, and that of the 1870 enforcement legislation, give the Court a clear basis for overturning the Colorado decision, and shutting down the ballot-booting lawfare, without having to reach and decide politically explosive questions relating to whether Mr. Trump is barred by Section 3 from holding office because of his actions on and around January 6. Section 3 simply does not apply to candidates.
The Court will take this course, apply the law, keep Trump on the ballot, avoid being dragged into election year politics, and clear the way for the people to decide who they want to be their next president. That’s the way things should work in a constitutional democracy.