Disqualifying Trump and Other Insurrectionists
USING DECLARATORY JUDGMENTS TO PRESERVE THE REPUBLIC
The Fourteenth Amendment, Section Three, states:
“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.”
This has gotten a lot of buzz in the last few days because respected constitutional scholars — including, notably, two prominent members of the Federalist Society, William Baude and Michael Stokes Paulsen, have written an extensive law review paper to be published in the fall, concluding that Donald Trump and all of the members of congress — including any who would like to run — who participated in the January 6 insurrection are constitutionally prohibited from running for office. The paper, which is available in preview [The Sweep and Force of Section Three ] provides the following synopsis:
Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.
Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.
Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment.
Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
Professor Heather Cox Richardson (Letter of August 19, 2023) has written about the same subject, and most of the comments online rejoiced in the concept of excluding Trump, but questioned how the “self-executing” clause could ever be implemented. (If it’s self-executing, why is Trump even running?)
Former federal Appellate Judge J. Michael Luttig (a conservative icon) and Harvard Professor Laurence H. Tribe, in an article in The Atlantic, [Trump Is Constitutionally Prohibited From the Presidency] two equally revered constitutional scholars from politically diverse backgrounds, fully endorsed the Baude and Paulsen analysis:
The two of us have long believed, and Baude and Paulsen have now convincingly demonstrated, that notwithstanding its specific historical origin, Section 3 is no anachronism or relic from the past; rather, it applies with the same force and effect today as it did the day it was ratified * * *.
Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” * * *
They conclude further that disqualification pursuant to Section 3 is not a punishment or a deprivation of any “liberty” or “right” inasmuch as one who fails to satisfy the Constitution’s qualifications does not have a constitutional “right” or “entitlement” to serve in a public office, much less the presidency. * * * Finally, the authors conclude that Section 3 is “expansive and encompassing” in what it regards as “insurrection or rebellion” against the constitutional order and “aid and comfort to the enemies” of the United States.
Baude and Paulsen are two of the most prominent conservative constitutional scholars in America, and both are affiliated with the Federalist Society, making it more difficult for them to be dismissed as political partisans. Thus it is all the more significant and sobering that they do not hesitate to draw from their long study of the Fourteenth Amendment’s text and history the shattering conclusion that the attempted overturning of the 2020 presidential election and the attack on the Capitol, intended to prevent the joint session from counting the electoral votes for the presidency, together can be fairly characterized as an “insurrection” or “rebellion.” They write:
“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. If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution.”
(Emphasis added.)
Typically, candidates’ eligibility for being listed on the ballot is determined by each state’s Secretary of State (or other official responsible for the fair administration of elections). Luttig and Tribe acknowledge that unilateral decisions made by these politically elected officials would reek of partisanship. In response they suggest that once an official denies an insurrectionist a spot on the ballot, litigation would swiftly follow:
As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer — or, for that matter, upon the failure to enforce Section 3 as required.
When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot either disqualifies Trump from appearing on a ballot or declares him ineligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction.
Given the urgent importance of the question, such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation. (Additionally * * * the second sentence of Section 3 contains a protection against abuse of this extraordinary power by these elections officers: Congress’s ability to remove an egregious disqualification by a [2/3rds vote] of each House.)
The entire process, with all its sometimes frail but thus far essentially effective constitutional guardrails, will frame the effort to determine whether the threshold of “insurrection” or “rebellion” was reached and which officials, executive or legislative, were responsible for the January 6 insurrection and the broader efforts to reverse the election’s results.
The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. For our part, we would pray for neither unrest nor violence from the American people during a process of faithful application and enforcement of their Constitution.
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WHY THIS CAN’T WAIT
Examine how this would play out under Luttig and Tribe’s formulation: We would have to wait until next year — to wait for all of this to ‘hit the fan.’
In Pennsylvania and Arizona– two crucial swing states — the Secretaries of State are Democrats, who, presumably, would be sympathetic to exercising the ballot prohibitions that Luttig and Tribe endorse. (In addition to Trump, both states have Congressmen who were active participants in the January 6 cabal.) Other swing states are similarly governed by Democrats. After the primary season, the parties would hold their nominating conventions in July and August of 2024 — and at that point — a mere three months before the election, the Secretaries of State would be expected to decide to deny insurrectionists a place on the ballot.
It is hard to imagine any outcome of that process which would satisfy members of either party that the election process was being conducted fairly. Assuming that actions would be filed in district courts in the affected states, what kind of trials or hearings could be held within that time frame to determine whether Trump (and other insurrectionists) were properly barred?
All this would be taking place in the heat of an election campaign — likely while Trump was also on trial defending several criminal cases.
All of the Trump’s supposed grievances with the 2020 election turn on distrust of the electoral process. None of Trump’s alleged misconduct actually occurred. But in 2024, by throwing over the table on the eve of the election, Democratic election officials would be playing into the hands of every conspiracy theorist.
I think a better path is open: Most states and the federal judicial system permit filing for declaratory judgments well before matters have come to a head. From Wikipedia:
A declaratory judgment * * * is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute[.] * * * Declaratory judgments can provide legal certainty to each party in a matter when this could resolve or assist in a disagreement. Often an early resolution of legal rights will resolve some or all of the other issues in a matter.
A declaratory judgment is typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed; or when a party or parties believe that their rights under law and/or contract might conflict. * * * Declaratory judgments are authorized by statute in most common-law jurisdictions. In the United States, the federal government and most states enacted statutes in the 1920s and 1930s authorizing their courts to issue declaratory judgments.
It is critical for the responsible state election officials who might refuse Trump and others a place on the ballot, either separately in their respective state courts, or collectively in Federal Court, to file for declaratory judgments that the conduct of Trump and other insurrections falls within the clear meaning of the Fourteenth Amendment, Section 3.
Doing so will accelerate the determination by the Supreme Court, which will inevitably hear the matter. Many believe that the current SCOTUS, notwithstanding its conservative tilt, wants nothing to do with Donald Trump. The fact that the leading proponents of this movement are from the Federalist Society speaks volumes. But even if the Supreme Court decides that Amendment 14:3 does not apply, an early determination is needed to fend off chaos.
If this is left until next year after the conventions, it will provoke Bush v. Gore on steroids. Just imagine a determination by the Supreme Court, a month after the election, that Biden had won in 2024 only because Pennsylvania, Wisconsin and Arizona had denied Trump his rightful place on the ballot.
A declaration in 2023 — well-before the Republicans nominate their candidate — will serve the public interest, and, frankly, the partisan interest of Republicans as well: If they know going into the convention that the Supreme Court has declared that Trump is ineligible, they will likely nominate someone else — although sometimes, lemmings are just going to be lemmings.