Other Than Protecting Birthright Citizenship, the 14th Amendment Could Also Bar You-Know-Who From Holding Office
"Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification."
The convicted felon a month away from getting his former job back is, naturally, making headlines lately because of his desire to attempt to revoke birthright citizenship, a guarantee in the Constitution’s 14th amendment, from natural-born citizens of immigrant parents.
He claims he can do it by executive order.
One thing we should have learned if we haven't already is to assume everything this man says is either a lie or so embarrassingly ignorant, it would be laughable but for it coming from a former and future president of the United States. Despite occupying the Oval Office for four years, he has not gained any more insight into how the US government works, nor does he apparently care to learn.
No president can just cancel a constitutional right by executive order. Only an act of Congress, adhering to the necessarily complex process of amending the Constitution, can do that.
That doesn’t mean the former slumlord won’t try.
With a republican majority about to occupy the next Congress, it’s possible we will see someone on Capitol Hill introduce legislation, thinking it will get him or her into the president’s good graces.
We have to get out of the habit of saying, “That can’t happen.”
This is 2024. We just re-elected to the highest office the most demonstrably unfit person ever to run, win, and re-win the White House.
It can happen.
But there is another clause in the 14th amendment getting some, but not enough, coverage.
Section three of the Constitution’s 14th amendment 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.
The convicted felon incited an insurrection on January 6, 2021, attempting to overthrow the government to hold on to power.
So, according to the “disqualification clause” above, he should be barred from serving as president again, right?
On February of this year, the United States Supreme Court (SCOTUS) heard the case Donald J. Trump v. Norma Anderson, which served to provide an interpretation of section three of the 14th amendment after a group of Colorado voters’ suit in August 2023 led to the Colorado Supreme Court ruling in a majority opinion the former president was ineligible to run in the state’s upcoming primary election.
The SCOTUS’ decision: Individual states cannot enforce the disqualification clause; only the federal government has that authority, as stated in the last sentence of section three:
Congress may by a vote of two-thirds of each House, [to] remove such disability.
Dean Obeidallah (@deanobeidallah) on Threads
Reminder: Donald Trump is still possibly barred from being sworn in as President for inciting an insurrection in…www.threads.net
However, key words in the clause are “hold any office”. The clause does not specify appearing on ballots and being elected, only holding the office to which one has been elected.
That means after the new Congress is sworn in January 3, it could, conceivably, vote to prevent the adjudicated sexual assaulter from going any further.
With the upcoming republican congressional majority (albeit slim), it’s highly unlikely this is going to happen. The SCOTUS ruling is ambiguous, though, about whether disqualification clause enforcement requires specific legislation or if Congress could simply refuse to certify the presidential election this January 6, certification day.
University of Notre Dame law professor, Derek Muller, posited that even if a member of Congress objected to electoral votes, the Electoral Count Act does not require Congress fully investigate facts behind allegations when certifying votes.
Law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, however, do not believe SCOTUS’ ruling means Congress has exclusive authority to enforce section three.
In a forthcoming Harvard Law Review piece titled “Sweeping Section Three under the Rug: A Comment on Trump v. Anderson,” they argue:
Unlike some “great cases” of American history, where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court in Trump v. Anderson produced a flimsy decision in a high-stakes, high-profile, high-intensity case of great importance. Instead of confronting the issues squarely, the Court tried to sweep Section Three under the rug. The Court decided little, in the end, and what it did decide was still flagrantly wrong.
The Court held that states may not enforce Section Three’s disqualifications from office in the context of state election law concerning elections to federal office. That holding is legally indefensible. It fundamentally inverts the Constitution’s text, structure, and history concerning the power of states in presidential elections.
They continue:
It [SCOTUS] did not reject the Colorado Supreme Court’s conclusion that Trump is disqualified from future office, under the standards of Section Three. It did not hold that the events culminating in the January 6 attack on the Capitol fell short of the constitutional standard for an “insurrection.” It did not reject the Colorado Supreme Court’s conclusion that Trump had “engaged in” that insurrection. It did not question the Colorado courts’ factual findings concerning Trump’s conduct and intent. And–perhaps contrary to initial appearances, and contrary to the critique of the justices concurring in the judgment only–the Court did not hold that Section Three is legally inoperative without enforcement legislation by Congress. Nothing in the case contradicts the conclusions we reached in our prior scholarship, The Sweep and Force of Section Three, on any of these points.
They conclude:
Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today.
This means unless the new Congress acts to suspend section three of 14A, the wanna-be autocrat will be ineligible to assume the office of president on January 20.
Imagine if this were to happen.
“Unprecedented” would be an understatement.
By the time the business fraud re-enters the White House, he will have already stretched our constitutional boundaries more than they ever have.
The next four years are going to test our resolve, resilience, and determination. Preserving what is left of our constitutionally limited democratic republic is going to take everything we’ve got.
Do we say “good-bye” to nearly 250 years of democracy?