Now ineligible
Section 1 of Article Two is one, but not the only, place where the Constitution defines who may run for president. Whereas Section 1 of Article Two has to do with a factors over which a person has no control, place of birth and legal status of parents, Section 3 of the Fourteenth Amendment concerns how an American citizen behaves. It forbids officeholders who try to overthrow the Republic from holding office again.
It is obvious on a plain reading of this part of our Constitution that (absent a two-thirds vote of both houses of Congress) Donald Trump is now ineligible for the office of the presidency. He took an oath as an officer of the United States, and then engaged in insurrection and rebellion, and gave aid and comfort to others who did the same. No one seriously disputes this. Trump certainly does not. His coup attempt after losing the 2020 election is the platform on which is he is now staging what he portrays as his campaign for the presidency. The big lie he told at the time he continues to tell. He defied the Constitution and is now running against the Constitution.
Well I’d say Trump does dispute that he engaged in insurrection and rebellion. He would call it something else – something much easier to spell, for a start. He certainly disputes that he did anything wrong.
I was heartened just now to read a comprehensive, powerfully argued (and beautifully written) article by the (conservative) legal scholars William Baude and Michael Stokes Paulsen. It defends the plain reading of Section 3 of the Fourteenth Amendment on what would seem to be every historical and interpretive ground. It was written with all possible objections in mind. Rather than belabor these, I suggest you read the article itself (which should be published as some sort free ebook.)
The authors conclude that Trump is “no longer eligible to the office of Presidency, or any other state or federal office covered by the Constitution. All who are committed to the Constitution should take note and say so.” Although I am focusing on Trump here, the authors of the article are concerned with insurrectionists in general. For them, Trump is one of many people who are now, given their participation in Trump’s coup attempt, ineligible for office.
I thought at first “But doesn’t he have to be convicted to make that true?” Then I thought no, maybe not. He has to be convicted before he can be sentenced and punished, but maybe not before he can be ineligible to run again. I don’t know what the facts are on this.
I worry that we will find some excuse not to draw the obvious conclusion about Trump, so well grounded in the article. It was troubling, for me at least, to see the New York Times coverage of the article relativize its central finding with this vague but suggestive formulation: “voters remain free to assess whether his conduct was blameworthy.” This wording suggests that Trump can run for president, and that we as voters can then consider his ineligibility for that office alongside his legal problems (which the Times article then rehearses). That is wrong, because it misunderstands what ineligibility is.
Snyder compares it to Arnold Schwarzenegger, who is ineligible to run for president because he was born a citizen of another country.
we cannot decide to elect a president who is not a natural-born citizen. This is not an issue we are “free to assess,” because we are governed by the Constitution. For the same reason, we cannot vote for oath-breaking insurrectionists such as Donald Trump. Such people are barred by the Constitution from running for president.
H/t Harald Hanche-Olsen
The authors of the referenced paper deal with this in section III C, on page 56, on due process of law.
The short version of their answer is no. Among other reasons, because barring someone from holding public office is not denying them life, liberty or property.
Beware of anyone telling you there are clear answers here.
I’m sympathetic to the arguments in the paper, though I wouldn’t draw any conclusions without hearing an opposing view. But even the authors of that paper concede that the major precedent on the “self-executing” issue is a case from shortly after the ratification of the Fourteenth Amendment, and it’s by the then-Chief Justice Salmon Chase (in his capacity as a circuit justice), and it comes out the other way.
I don’t want to get into a long discussion about stare decisis and such. Suffice it to say that it’s a perfectly acceptable argument to say that Chief Justice Chase got it wrong. And it’s possible that today’s Supreme Court would disagree with Chase and agree with the authors. But it’s not how I would bet, and not just because it’s a conservative court.
The article strikes me as a perfectly reasonable piece of legal scholarship, but I’ve seen it passed around recently as the 163rd version of “THIS time they’ve got Trump! Here’s the ONE WEIRD TRICK that will keep him from regaining the presidency!” (Not saying that’s what OB or HHO are doing here. This thing’s been making the rounds, and with people who are less restrained in their commentary.) And I just don’t see it happening.
I strongly suspect that the Biden campaign is not going to get behind any effort to block Trump from being on the general election ballot, and even the few Republicans (Christie, Hutchinson) who have criticized him aren’t going to try to get him disqualified from the primary ballot. Yes, it’s possible that some activist groups will sue on their own, or some enterprising Secretary of State or other election official will decide to act on his or her own. Then you’ll have counter-demands from the GOP that Biden be disqualified from the ballot because, I don’t know, his border policies are aiding and abetting an invasion and insurrection or whatever. And the courts are going to be strongly motivated to say “no, we are not having this election decided by individual state officials taking it upon themselves to declare what an insurrection is by watching some videos and reading some tweets. If someone actually gets convicted of something, maybe then.”
There is no Adult in Charge who is going to step in and assert his or her (supposed) authority to make sure Trump can’t be president again because he was naughty. The American electorate is going to have to do their job again. And yes, that makes me nervous.
That’s just a prediction, and I could easily be wrong. But I’m going to need to see more than “a couple law professors came up with a neat argument.” There are law journals full of such neat arguments that will never be adopted by an actual court.
That Trump staged the event that drew the January 6th attackers to the White House and then sent them off in the direction of the Capitol is one fact. Another is that Trump demanded that Pence not certify the election results. Another is that Trump and his legal advisors set up false electors to take the place of the legal electors in several states. This is all clear evidence of a deliberately planned attempt to prevent Joe Biden from becoming the President-Elect on January 6th, which amounts to an attempted coup and is an insurrection. Trump can be convicted and it’s not a stretch legally to find him in violation of the 14th Amendment. What happened on January 6th wasn’t just something naughty, it was criminal. I for one do not want to trust the mob to elect a President, and that’s what Trump will try to make happen. It can happen here.
[…] a comment by Screechy Monkey on Now […]
Screechy, that’s what I meant by “I don’t know what the facts are on this.” I don’t know for instance what the facts are that flow from the fact that Trump is now ineligible to run for president. It sounds decisive, saying he’s ineligible, but is there some sort of turnstile that he can’t go through because he’s ineligible? If not…what does it mean that he’s ineligible? It’s all very opaque to us random citizens.
Well, it’s kind of opaque to everyone.
The article argues that the Ineligibility Clause is “self-executing,” meaning that there doesn’t have to be a specific legal proceeding to declare Trump (or anyone else) ineligible — he just is, automatically, by operation of law.
But in the real world, the rubber still has to meet the road somewhere. Somebody, at some point, has to actually enforce that supposed disqualification by doing, or refusing to do, something. As the article itself concedes, in the context of a presidential candidate, it would presumably happen by the Secretary of State or whoever is responsible for such things in a particular state refusing to put Trump on the ballot on the grounds that he’s ineligible. Just as they might refuse to put a 27-year-old on the ballot, or someone who is not a natural born citizen. (Or, conceivably, somebody else could sue to try to force the SoS to take him off the ballot, though as I said, I’m doubtful that anyone with standing will try.)
And then we’re off to the races, because a court is going to have to decide all that. It’s all well and good to say that the constitutional provision is “self-executing,” but what does that actually mean in the real world? What inquiry does a state election official have to do before making that decision? What evidence can he or she consider? Is Trump entitled to a hearing, to cross-examine witnesses, to submit evidence? What standard has to be satisfied for the SoS to make such a determination? And once it’s made, what are the grounds on which it can be challenged in court, and by what procedure, and what standard of review? These things are incredibly important in the real world — there’s a massive difference between “an executive branch official can just decide this stuff based on whatever process and data he or she wants, and judicial review is limited to considering some written submissions and deciding if the decision was completely arbitrary and irrational” and “the election official must provide notice and an opportunity to be heard, some due process protections have to be in place, and ultimately a court can conduct a de novo review with no deference to that decision, at a full trial with normal evidentiary rules” and everything in between.
And nobody really knows the answers to those questions because they don’t get litigated. Because it’s a little unusual for a president to incite an insurrection.
So not knowing those facts is completely understandable. And as I said, beware of anyone who tries to tell you they know the answers, because nobody does.
I will do that.
I should have known, really. There have been so many things Trump was absolutely 100% not allowed to do, that he did, and went on his way rejoicing.
I think the circumstances of the 15th Amendment’s origin lean against the necessity of a criminal conviction of “insurrection” or similar. There were far too many Confederate combatants to require that kind of formal determination as a condition precedent to the ineligibility.