Monday, January 11, 2021

More Questions About Section Three

Gerard N. Magliocca

Needless to say, I'm getting many questions about Section Three of the Fourteenth Amendment. Let me go through a few of them.

1. How would this apply to members of Congress?

My view is that the members of Congress who voted to reject the certification of the Electoral Votes are not ineligible under Section Three. It's not even close. They were voting in a legal process and speaking out on the floor to explain those votes. This is not an insurrection under any standard.

There is another issue about Congressman Brooks, who apparently spoke at the rally that preceded the mob action. Does he have a Section Three problem? Possibly, though I'd have to look more carefully at what he said. Even if he does, though, the House would probably have to expel Brooks with a two-thirds vote. In Powell v. McCormack, the Supreme Court declined to address whether Section Three involves an eligibility requirement (like age or citizenship) where a simple majority can vote to exclude someone. It's an open question. Thus, it's possible that a majority vote to exclude Brooks may be upheld, but I doubt it.

2. How would this be enforced against the President?

With respect to President Trump, the idea is that if he runs for President again, at least one state would refuse to put him on the ballot in the primary on the ground that he is ineligible. (Same as if he were 30 years old or a naturalized citizen.) Then he would sue and the courts would decide if he is eligible.

In theory, someone could try to challenge presidential actions taken between Jan. 6th and Jan 20th as invalid (if they are not also taken by the Biden Administration) on the ground that Trump was not eligible to be President after the 6th. That's a more complicated question, but courts may have to address that down the line.

3. Would a Joint Resolution Naming the President for Violating Section Three be a Bill of Attainder?

Here's the odd thing about Section Three: It is an exception to the Attainder Clause of the Constitution. The only exception, basically. Opponents of the Fourteenth Amendment raised this objection in 1866. Congress and the states overruled them. Chief Justice Chase, writing about Section Three in 1869, said that provision was inconsistent with the Attainder Clause but that the people in their sovereign capacity were not limited by what was in the Constitution previously. You can also argue that a Joint Resolution of the kind I discussed in my prior post is not a bill of attainder, but the point is that, even if it is, it is valid.

I may have more to say as developments unfold.




Gerald: The disability applies to one who's taken an oath to support the Constitution and who has then either (i) engaged in insurrection or rebellion against the United States, or (ii) given aid or comfort to the enemies of the U.S.

Horrible (and office-disqualifying) as his conduct was, what's the theory under which Trump did either of those things? Is it that he gave "comfort" to the mob and that the mob were enemies of the U.S.?



The theory would be that inciting an insurrection is engaging in insurrection. A contestable point to be sure.

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