The insurrection clause in the Constitution seems like a surefire way to keep the twice-impeached, multiply indicted former president off the ballots. But it’s not that simple.
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Can Donald Trump be removed from the 2024 ballot under the 14th Amendment?
It’s an interesting legal question, but ultimately, it’s the wrong question, unless you’re a law school professor. But if you’re not an academic dedicated to debating the finer points of constitutional law, it’s probably best to operate under the assumption that no court is going to save us from Donald Trump, and the only way out of this nightmare is through the ballot box.
The 14th Amendment
After the Civil War, pro-Union members of Congress were appalled to find former Confederate officials being elected to federal office. Most egregiously, Georgia elected Alexander Stephens, the onetime vice president of the Confederacy, as a U.S. Senator in 1866. The Senate refused to seat him, and in 1868 Congress adopted Section 3 of the 14th Amendment regarding Disqualification from Holding Office:
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.
And for a while, it worked. Everyone knew what “insurrection or rebellion” meant, since they’d just fought a whole war over it. Then Congress got squishy and passed an Amnesty Act in 1872, allowing Stephens to become a member of the House of Representatives in 1873 and then the governor of Georgia in 1882. So much for Reconstruction!
But now it’s 155 years later, and we can’t even agree what happened on January 6, 2021. Was it an insurrection? A riot? A protest? A tourist visit? Even the language of the Amendment itself starts to look a little less clear with a century and a half of hindsight.
The Professors
Since January 6, 2021, there’s been a robust debate among legal scholars about removing Trump from the ballot under the 14th Amendment.
Conservative judicial icon J. Michael Luttig teamed up with liberal Harvard Law professor Laurence Tribe to argue that Trump is barred from office under the 14th Amendment, even though the former president was neither impeached nor convicted of rebellion or insurrection.
“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation,” they wrote in The Atlantic. “The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”
Judge Luttig and Professor Tribe took their inspiration from a longer, scholarly article in the University of Pennsylvania Law Review (forthcoming, 2024) by Professors William Baude and Michael Stokes Paulsen, who argue that Section Three’s ban is “self-executing”—that is, it functions in the same way as the Constitution’s citizenship and age requirements for the president.
“Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is,” they write, adding that it is incumbent upon “officials sworn to uphold the Constitution” to refuse to allow a disqualified person to appear on the ballot.
In contrast, law professors Seth Barrett Tillman and Josh Blackman argue in the New York University Journal of Law and Liberty that Trump is not disqualified because the president is not an “officer of the United States.” They insist that the term refers only to officials who are appointed, not elected. Under this interpretation, Trump had not “previously taken an oath, as a member of Congress, or as an officer of the United States” when he encouraged the crowd to descend on the Capitol and “fight like hell” in the January 6 insurrection/riot/protest/tourist visit.
George W. Bush’s former Attorney General Michael Mukasey—whose son Marc Mukasey just so happens to have represented multiple Trumpword figures — took to The Wall Street Journal to endorse this position. But law professor Ilya Somin counters at Reason that this reading of the Constitution is “badly flawed” and even an “absurdity.”
“Surely an insurrectionist who held the highest office in the land is much more of a menace to the republic than one who was merely a low-level federal bureaucrat,” he scoffs. “It makes no sense to disqualify the latter, but not the former.”
Our nation’s foremost illegal expert has thoughts of his own:
The Lawsuits
With one notable exception, litigation seeking to declare politicians ineligible for office based on the events of January 6, 2021 has failed. Couy Griffin, a New Mexico County Commissioner, was removed from office in 2022 under Section Three3 of the 14th Amendment after being convicted of trespassing at the Capitol on January 6. In contrast, Reps. Marjorie Taylor Greene and Madison Cawthorn, who merely supported the rioters and flogged lies about election fraud, survived legal challenges to their eligibility for office. (Note: Cawthorn’s case was functionally mooted before final resolution after he made himself so obnoxious that he managed to lose the primary as an incumbent.)
With respect to Trump’s eligibility, scholarly debate is interesting and even important. But here in the real world, his exclusion from the ballot has not simply executed itself. Indeed, his status as the Republican Party’s 2024 presidential nominee seems all but certain. And while multiple secretaries of State have made throat-clearing noises about investigating the 14th Amendment issue, none has gone so far as to exclude Trump from the ballot. Instead private citizens have filed lawsuits, including in Florida, Minnesota, Michigan, and Virginia. In fact, longshot Republican candidate John Anthony Castro says he filed 27 such complaints in state court, although the Supreme Court recently declined to take up his federal challenge to Trump’s eligibility for office.
Thus far the case getting the most traction is in Colorado, where Denver District Court Judge Sarah Wallace recently denied Trump’s motion to dismiss a 14th Amendment ballot challenge for lack of standing. While most states require a showing of individualized injury, such as by a primary challenger like John Anthony Castro, Colorado law grants voters the right to challenge a candidate’s eligibility in court. But in the unlikely event that this case goes to trial before the 2024 election, it will be appealed through Colorado’s courts, then the federal judiciary, and finally to the Supreme Court. And while the high Court’s six conservative justices have not been eager to protect Trump personally, it seems very unlikely that they would allow him to be excluded from the ballot entirely.
Just Because You Can, Doesn’t Mean You Should
But let’s play this thing out to its logical conclusion. Let’s pretend that the Supreme Court would hold that the 14th Amendment provides a path for individual states to keep Trump off the ballot. Perhaps judges in states like Colorado and California would indeed disqualify Trump from running for office. Excluding Trump from the ballot in a handful of blue states would have no effect on his electoral college tally—he wasn’t going to win Colorado anyway. It would, however, hand the whiniest fake victim on Earth the perfect campaign issue, gift-wrapped and tied up with a giant bow.
Trump’s entire shtick is howling that anything he doesn’t like is “election interference.” Everything from ballot drop boxes to social media moderation to his own criminal indictments is branded a plot by THEM to take the vote away from YOU, the MAGA voter.
“They’re not coming after me, they’re coming after you,” he screams daily, painting himself as the only thing standing between his followers and a woke mob of Antifa activists, bent on “trans-ing” Middle America’s kids with “critical race theory.” Even as Republicans work doggedly to disenfranchise Americans with onerous ID requirements, voter roll purges, and gotcha paperwork—You signed but did not date the outer envelope which was delivered ten days before the election! No vote for you!—they claim that we are trying to take away their right to vote.
And if we try to use dubious legal reasoning to remove their preferred candidate from the ballot, they will be right.
We now live in a country that is gerrymandered to ensure that a minority party wields power without accountability to the majority of voters. And thanks to the vicissitudes of the electoral college, the last two Republican presidents have ascended to office after losing the popular vote.
It is tempting to pin our hopes on “one weird legal trick” which will rid us of a demagogue who has done so much damage to the country. And in a sense we spent four years hoping against hope that the legal system would bail us out of this mess.
“Mueller is coming!” we assured ourselves, as we pondered recently convicted attorney Michael Avenatti’s prospects as a presidential contender. In 2021, we seamlessly transitioned to binging on hagiographic podcasts about Special Counsel Jack Smith and Fulton County District Attorney Fani Willis. Too often, we on the left have succumbed to the fantasy that something like divine intervention would save us from this scourge.
It will not.
But the good news is, we can save ourselves. We did it in 2020 when we showed up to vote and took back the White House. We did it in 2021 when Georgia voters gave Democrats control of the Senate. And we can do it again next year by doing the hard work to reelect Joe Biden and flip the House back to control by sane grownups.
The 14th Amendment is not a magic bullet. There is no magic bullet to save democracy.
The only way around is through.