Saturday, February 06, 2021

Clarifying Section Three of the Fourteenth Amendment

Gerard N. Magliocca

The Washington Post has a story out today that makes an error in describing the proposed use of Section Three against the former President. A Concurrent Resolution of Congress declaring Trump ineligible to serve again does not bar him from office. Such a resolution would only express Congress's view that he is ineligible, just as the Senate expressed its view in 2008 that John McCain was eligible to be President. In both cases, though, only a court can make the ultimate determination. A Concurrent Resolution would just be persuasive authority that a court could cite in favor of ineligibility.

When Section Three legislation and/or a concurrent resolution is introduced in Congress, I think all of this will become easier to understand and describe.  


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