Reflections on January 6th and What's Coming Next

Gerard N. Magliocca

On the night of January 6th, I wrote the following post on this blog:

I find very interesting the use of the word "insurrection" to describe what occurred today at the Capitol. For example, Senator Romney issued a statement stating that today was "an insurrection, incited by the President of the United States." Senator McConnell described today as a "failed insurrection."

If so, then Section Three of the Fourteenth Amendment might apply to President Trump. People 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" are ineligible to serve in a variety of federal and state offices. If President Trump is "an officer of the United States" and he did incite an insurrection against the United States, then he might well be ineligible under Section Three. . . .

In the weeks following January 6th, I wrote a series of posts and other short pieces arguing that Congress should respond by passing a non-binding resolution declaring President Trump ineligible to serve again as President and enacting Section Three enforcement legislation that would lay out an orderly process and clear standards for the federal courts to make ineligibility determinations with respect to Trump or anyone else. Of course, Congress did not take my advice. Maybe the January 6th Committee will take up the issue (and I hope that they do), but even then action from Congress is unlikely.

In the absence of congressional action, we face an upside-down application of Section Three. Lawsuits will almost certainly begin this year challenging the ballot eligibility of members of Congress who were allegedly involved in January 6th. Thus, state election officials and state courts will be forced to take the lead in deciding whether an attack on the national legislature triggers Section Three of the Fourteenth Amendment. If that sounds backwards, that's because it is. The structure and history of Section Three assumes Congress and the federal government will take the leading role in determining ineligibility. A state-centered process will be confusing due to the vagaries of state election law, partisan bias in some states, and the rapid timetable under which these cases must be decided. State primaries have fixed dates. Only a few months will pass between the initial suits and their final determination, which does not bode well for reasoned judgments in the states or in the Supreme Court. It won't be pretty. 

My final thought is that the legal and academic community is whistling past the graveyard by not giving more attention to Section Three as applied to the 2022 and 2024 elections. Perhaps this reflects a desire to avoid thinking about the implications of Donald Trump's comeback campaign. But Trump and the rest of the country are on a collision course with Section Three. It's just a matter of time.