Trump’s Filing – Section 3 Under Scrutiny

In a petition filed on Wednesday, Donald Trump's lawyers ask the U.S. Supreme Court to reverse the Colorado Supreme Court's determination that he is disqualified from that state's presidential primary ballot because he "engaged in insurrection" by inciting the January 6, 2021, riot at the U.S. Capitol. The petition suggests several plausible reasons for rejecting that attempt to enforce Section 3 of the 14th Amendment, which was originally aimed at preventing former Confederates from returning to public office after the Civil War.

Section 3 says: "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."

UCLA election law expert Richard Hasen describes Trump's petition as "a strong legal document" that "raises some serious, difficult questions" about how to interpret and apply that language. Here are seven of those questions:

1. Is Section 3 self-executing?

Under Section 5 of the 14th Amendment, "the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." But the Colorado Supreme Court concluded that Section 3 is "enforceable as a constitutional disqualification without implementing legislation from Congress." In an influential 2023 law review article, University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen reach the same conclusion. While Congress could pass legislation to enforce Section 3, they say, that does not mean the provision has no effect without such legislation.

That interpretation seems consistent with the second sentence of Section 3, which says Congress can "remove such disability," implying that the disqualification is otherwise automatic. But Congress did enact legislation aimed at enforcing Section 3 against former Confederates during Reconstruction, although it later approved broad amnesties that removed those disabilities. Dissenting Colorado Supreme Court Justice Carlos A. Samour Jr. argued that Section 3 is not self-executing, citing Chief Justice Salmon P. Chase's 1869 opinion to that effect.

The Colorado Republican State Central Committee (CRSCC), in its own Supreme Court petition, argues that "Congress, and Congress alone, can enforce Section Three." It says the only plausibly relevant current statute is 18 USC 2383, which makes insurrection a federal crime and adds that anyone convicted of it "shall be incapable of holding any office under the United States." But as the CRSCC notes, Trump "has not been indicted under Section 2383, let alone tried and convicted," which it says "would be required to trigger application of Section Three."

Trump's petition says that argument is "worthy of consideration" by the Supreme Court. But "even if section 3 does not require enforcement legislation to have effect," his lawyers say, "the lack of such legislation deprives the courts of judicially manageable standards." Echoing a concern that Samour raised, they note that the 14th Amendment does not say who has the authority to determine whether a candidate is disqualified under Section 3 or what standard of proof should apply. "The terms 'engage' and 'insurrection' are unclear and subject to wildly varying standards," they say. "The result is that 51 different jurisdictions may (and have) adopted divergent rulings based on different standards on the same set of operative facts."

2. Is the presidency a civil office "under the United States"?

Although the answer might seem obvious, Section 3 specifically mentions senators, representatives, and presidential electors but not the head of the executive branch, who you might think would have been at the top of the list if that position was supposed to be included. "To find that section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors," Trump's petition says. "This reading defies common sense."

University of Richmond law professor Kurt Lash makes the same point. "It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers," he writes. "At best," he argues, "the text of Section 3 is ambiguous regarding the office of president."

The original draft of Section 3 did specifically mention the president and the vice president, but those references were ultimately removed. Although that change seems like evidence that Section 3 does not cover the presidency or the vice presidency, the Colorado Supreme Court cited an exchange between two senators that suggests otherwise.

The revised Section 3 "does not go far enough" because ex-Confederates "may be elected President or Vice President of the United States," Sen. Reverdy Johnson (D–Md.) complained during the congressional debate over the 14th Amendment. "Why did you omit to exclude them?" Sen. Lot Morrill (R–Maine) reassured Johnson: "Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States.'" Johnson conceded that "perhaps I am wrong as to the exclusion from the presidency," adding, "no doubt I am," but "I was misled by noticing the specific exclusion in the case of senators and representatives."

3. Is the president "an officer of the United States"?

That phrase refers to the prior status of someone disqualified under Section 3. Again, it may seem obvious that the category includes the president. But Trump's lawyers note that "the phrase 'officer of the United States' appears in three constitutional provisions apart from section 3, and in each of these constitutional provisions the president is excluded from the meaning of this phrase."

The Appointments Clause "requires the president to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and 'all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.'" The Commissions Clause "requires the President to 'Commission all the Officers of the United States.'" Since the president "does not (and cannot) appoint or commission himself," Trump's lawyers argue, those clauses imply that the president is not "an officer of the United States" under the Constitution.

Similarly, the Impeachments Clause says "the President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Trump's lawyers say that language likewise suggests Trump was not "an officer of the United States" when he served as president.

4. Did Trump take an oath to "support the Constitution"?

That language tracks with the oaths taken by members of Congress, state legislators, and "all executive and judicial officers," as specified in Article VI. But the presidential oath, described in Article II, is worded differently, requiring the oath taker to "preserve, protect and defend" the Constitution. The Colorado Supreme Court thought that amounted to pretty much the same thing, saying "the language of the presidential oath" is "consistent with the plain meaning of the word 'support.'" But Trump's lawyers argue that the difference in wording underlines the distinction between the president and other government officials. "The drafters of section 3 had before them both the Article VI and Article II oaths," they say, "and they chose to apply section 3 only to those who took Article VI oaths."

5. Was the Capitol riot an "insurrection"?

Two weeks after the riot, Indiana University law professor Gerard Magliocca, who in 2020 wrote "the first scholarly account" of Section 3, said he was "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like."

Magliocca nevertheless thought the Capitol riot could plausibly be described as an insurrection, since "the mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force." More recently, he has taken a firmer stance, telling Boston's NPR station, "I think that January 6 constitutes an insurrection within the meaning of Section 3."

Trump's lawyers unsurprisingly take a different view. Given the historical context, they say, "'insurrection' as understood at the time of the passage of the Fourteenth Amendment meant the taking up of arms and waging war upon the United States." That is notably different, they argue, from what happened at the U.S. Capitol in 2021 or from what happened the previous year in Portland, Oregon, where "violent protestors targeted the federal courthouse…for over 50 days, repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purported political agenda opposed to the authority of the United States." Such incidents, they say, reflect "a long history of political protests that have turned violent," which are a far cry from what Section 3's framers had in mind.

6. Did Trump "engage in" an "insurrection"?

"I think that former President Trump engaged in insurrection before and on January 6," Magliocca says. So do Baude and Paulsen, who make an originalist case for a broad reading of Section 3 that they say clearly covers Trump's conduct.

In reaching the same conclusion, the Colorado Supreme Court relied heavily on the final report from the House select committee that investigated the riot and the testimony of Chapman University sociologist Peter Simi. Simi opined that Trump "developed and employed a coded language based in doublespeak that was understood between himself and far-right extremists, while maintaining a claim to ambiguity among a wider audience."

Since Trump was speaking in code when he gave his inflammatory pre-riot speech at the Ellipse, the court reasoned, divining his intent requires going beyond the surface meaning of his words. He may have talked about "peacefully and patriotically" marching on the Capitol, the majority said, but "his violent supporters" knew what he really meant. And when he urged them to "fight like hell," they knew he meant that literally.

As Trump's lawyers note, Simi's testimony was based solely on the January 6 committee's report and his interpretation of Trump's public speeches. Simi conceded that he was not in a position to say what was "in President Trump's mind" when he gave his speech at the Ellipse. When asked whether he had "evidence that it was President Trump's intention to call them to action," Simi replied that his testimony "is not addressing that issue." Yet "the district court used Simi's testimony to support its factual finding that President Trump intended to incite violence," Trump's petition notes, and the Colorado Supreme Court agreed with that conclusion.

7. Is Section 3 a bar to running for office?

Baude and Paulsen argue that Section 3 "can and should be enforced by every official, state or federal, who judges qualifications" of political candidates. In this case, they say, that means all of those officials have a duty to exclude Trump from the ballot. But Trump's lawyers argue that Section 3 "merely bars individuals from holding office, not from seeking or winning election to office." They note that "Congress can remove a section 3 disqualification at any time," which means it could "remove that disability after a candidate is elected but before his term begins."

These complications might make you wonder whether Trump's opponents are relying on the wrong amendment to stop him from running for president again. Given his continued insistence that he actually won reelection in 2020, the 22nd Amendment seems more promising.

via magatribute

Latest Articles