Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As Democrats in the House prepare to impeach President Trump for a second time, there’s much discussion of problems of timing and whether he could really be removed from office before January 20. There is one good reason to do it anyway: to demonstrate to future Americans that inciting armed insurrectionists to take over the Capitol during the counting of the electoral votes is a “high crime.” Some advocates of impeachment also point to a more practical objective: to disqualify Trump (by a further congressional vote) from holding “any Office of honor, Trust or Profit under the United States” in the future. See Art. I Sec. 3. What everyone means by this is, disqualify him from running for President again.
I have a more basic question. Suppose Trump is not convicted, or at any rate, not barred from future office by a special vote of Congress. Now suppose he runs for President again. Section 3 of the Fourteenth Amendment (“14.3”) reads:
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.
Did President Trump, by urging his supporters to march on the capitol and “fight” to overturn his election loss—which they did, with zip ties and weapons—incite an “insurrection” for purposes of this clause? And is such incitement enough to count as having “engaged in insurrection,” or “given aid and comfort,” for purposes of the clause?
These questions are not cut and dried. I would not necessarily relish the prospect of arguing them in front of a Supreme Court with Brett Kavanaugh, appointed by President Trump, as the median Justice. But it is a mistake to think the Supreme Court is the venue in which such issues are always resolved.
As I was about to post this, I saw that a few minutes ago, Mark Graber posted a link to a characteristically thoughtful piece making exactly this point, and centering in particular the Reconstruction Republicans’ idea that it’s Congress who decides who has engaged in “insurrection”—and that Congress could take action now to make it clear that President Trump falls into this category. So why am I posting this anyway? Because the obligation to enforce Section 3 of the Fourteenth Amendment is not limited to Congress either.
Suppose that in a particular state in 2024, the Republican Party, under state law, has authority over which candidates will be listed on the ballot for its party primary for President. Suppose some within the state party view President Trump (or some other candidate) as ineligible to run on the ground that they engaged in insurrection for purposes of 14.3 on or about January 6, 2021. I can certainly imagine situations in which the Party would succeed in taking the candidate they view as constitutionally ineligible off the ballot—and in which no federal or state court would block it. There’s a lot of space for constitutional interpretation outside the judicially enforced Constitution, especially in areas where courts like to invoke the phrase “political question” and take a big step out of the limelight. Congress could play a role here by invoking 14.3 in some sort of resolution of censure—or through impeachment itself (even absent a conviction: suppose the only reason the Senate doesn't convict is that it ran out of time). But Congress will not necessarily have the last word either: many different constitutional actors, from state party members to voters, have a role to play in enforcing this section of the Constitution. As a matter of realpolitik, state laws vary, but it is certainly possible that, to continue with my example, a state party’s reasonable and good faith interpretation of the Constitution could well govern even if it diverged from what Justice Kavanaugh might have concluded if a case reached him and he reached the merits.
Trump might try to invoke a lawyerly deus ex machina at this point: maybe the Presidency isn’t actually an “office, civil or military, under the United States.” This is implausible. On this view, Robert E. Lee could have gone ahead and run for President against Grant without a constitutional obstacle from 14.3. It’s true that the text lists lots of other offices (Senator, Representative, Elector) but not President. However, the phrase in the Constitution saying what Congress might do to bar somebody after impeachment—"disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” Art. I Sec. 3., sounds very much like the relevant clause from 14.3. Both are an “office . . . under the United States” and everyone seems to agree that the affirmative disqualification vote by Congress means you can’t run for President. I would think 14.3 would work in a similar way. (The same language is used in the religious test clause. If the Presidency isn’t an “office . . . under the United States,” then could a religious test be imposed on who can run for President? This seems an unlikely, and unconvincing, way to read all these provisions.)
My bottom line is this: I think questions of whether President Trump (or some other candidate) “engaged in insurrection” or gave insurrectionists “aid and comfort,” to a sufficient degree that they ought to be disqualified from running for President in the future, are going to be politically fraught and messy questions for future Republicans at all levels of government. And they should be. As a party, the Republican Party has a big problem, which is that a large faction of their party believes in a conspiracy theory that justifies insurrection and reframes it as patriotism. Most Americans correctly view this as crazy. But there is no escaping this problem. Republicans are going to have to confront the question of whether a leader quite popular in their party has in fact rendered himself ineligible for office. (Of course, if the Senate formally votes to convict Trump, and Congress also votes to impose the disqualification under Article I, Sec. 3, then it’s entirely settled, and Republicans can breathe a sigh of relief, along with all Americans, if for partly different reasons. The problem is what happens in the likely event that this does not occur.)
From this perspective, impeachment is likely to be viewed in the end as the first salvo in a long struggle over the meaning of the events of January 6, 2021—and specifically the question of whether President Trump's actions were so far outside the boundaries of normal American politics as to constitute insurrection. This is not exclusively a legal struggle. It is a struggle constitutional politics, inescapably constitutional and political in nature. Many actors will play roles in it, from officials high and low to the voters themselves.
[Update: Gerard Magliocca has an incredibly timely paper on Section 3 of the Fourteenth Amendment, which I suspect he will blog more about here.]