Monday, July 19, 2021

Section Three and the 2024 Campaign

Gerard N. Magliocca

My paper on Section Three of the Fourteenth Amendment is now published. I thought I'd give a brief update on where things stand.

Section Three will probably be dormant until 2023. You might see a few claims next year against members of Congress who are running for election, but I seriously doubt that any court will reach the merits. Some claims will be dismissed for lack of standing. In other cases, a court can say that the issue is non-justiciable because a House of Congress is the ultimate authority on the eligibility of members-elect to serve. If any courts do reach the merits, they will probably go with the J.J. Gittes rule and say as little as possible before rejecting the claim.

In 2023, Section Three will probably come to life. First, either chamber of Congress could exclude a member-elect as ineligible. If this is done with a simple majority vote, then litigation would ensue on whether Section Three is an eligibility requirement subject to a majority vote or a punishment that requires expulsion by a two-thirds vote. Second, when Donald Trump announces his candidacy, Section Three objections will be raised and will certainly be litigated. Here I think that there is a reasonable chance that at least one court will find him ineligible, requiring the Supreme Court to weigh in.

The chief problem with any Section Three litigation about Trump is that the election calendar is fixed. Thus, the cases are going to be rushed. The Supreme Court will need to act in an expedited fashion to resolve the issue before the 2024 primaries. This does not bode well for a thoughtful analysis, though by then there may be more factual development through congressional investigations or press stories about what occurred on January 6th and the extent to which Trump was involved. Ultimately, I think that the inability of Congress to enact Section Three legislation will prove fatal to the claim that he is ineligible, but we shall see. 


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