Don't Hold Your Breath for Trump Ban Under the 14th Amendment

Is there a legal way to end Donald Trump’s political career, once and for all, without defeating him at the polls? The odds are long, if not almost insurmountable, but a path does exist.

An impressive group of constitutional scholars has concluded that Trump can be disqualified from taking back the White House under the 14^th Amendment as a result of his role in sparking the Jan. 6, 2021, insurrection at the U.S. Capitol. Initially confined to academic circles and small activist groups on the liberal and progressive left, the idea is going mainstream as the 2024 presidential election approaches with Trump tied in many polls with President Biden.

The theory is based on the amendment’s section 3, which provides:

“No person shall…hold any office…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.

Law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas offer a comprehensive exposition of the theory in a 126-page article for the University of Pennsylvania Law Review that was released in draft form in early August. Harvard Law professor Lawrence Tribe and retired federal appellate judge J. Michael Luttig published a leaner account of the argument last month in The Atlantic.

All four scholars conclude that Section 3 disqualifies Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

Although aspects of the disqualification theory are esoteric and understanding the nuances requires some background in post-Civil War history (the 14^th Amendment was ratified in 1868), the argument boils down to Section 3’s clear and unambiguous language prohibiting insurrectionists from holding office. The section, according to the theory, is “self-executing,” meaning that it applies immediately and automatically without the need for additional legislation by Congress or criminal convictions.

All four scholars conclude that Section 3 disqualifies Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election. Their unanimity is noteworthy because Tribe is the only liberal among them. Luttig, who was nominated to the bench by George H.W. Bush, was a favorite of Republicans in the pre-Trump era. Baude and Paulsen are members of the Federalist Society and proponents of the conservative legal philosophy of “originalism” — the view that holds the terms and provisions of the Constitution and its amendments must be understood according to their original “public meaning.”

But while the authors’ credentials are impeccable and their research thorough, the disqualification theory is not without problems.

One major hurdle is that it is difficult to define the terms “insurrection” and “rebellion” with precision. To protect civil liberties, free speech and democratic dissent, the terms must be construed narrowly. Neither term, however, is defined in the Constitution, although Article I, Section 8, clause 15, of the Constitution empowers the president to call up the militia to suppress insurrections.

The Insurrection Act of 1792, still on the books, provides some clarification by authorizing the president to combat rebellions that “make it impracticable to enforce the laws of the United States…by the ordinary course of judicial proceedings.” There is also a section of the federal criminal code, tracking both Section 3 of the 14^th Amendment and the Insurrection Act, that makes it a felony to incite or engage in insurrection or rebellion.

Recognizing the perils of overly broad characterizations, Baude and Paulsen craft their own limiting constructions. “Insurrection,” they write, “is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect,” beyond “mere ordinary lawbreaking.” They define “rebellion” as “an effort to overturn or displace lawful government activity by unlawful means…beyond mere resistance to government authority.”

Tribe and Luttig are also deeply concerned about civil liberties, but argue that the solution “lies in the wisdom of judicial decisions as to what constitutes ‘insurrection,’ ‘rebellion,’ or ‘aid or comfort to the enemies’ of the Constitution under Section 3.”

They recognize that to effectuate Section 3, demands will have to be made on state election officials to exclude Trump from the ballot, and lawsuits will have to be filed.

Relying on the courts to clarify ambiguous terms is nothing new, but litigation is hardly “self-executing.” This highlights another weakness of the disqualification theory: Enforcement of the Constitution requires human agency. If the long and never-ending struggle for civil rights in this country proves anything, it is that nothing about our national charter is self-executing.

This is not to suggest that Baude and Paulsen or Tribe and Luttig are naïve. To the contrary, they recognize that to effectuate Section 3, demands will have to be made on state election officials to exclude Trump from the ballot, and lawsuits will have to be filed.

The process, in fact, is already underway. The nonprofit advocacy groups Free Speech for the People and Mi Familia Vota Education Fund have issued letters to the secretaries of state in New Hampshire, Florida, New Mexico, Ohio and Wisconsin, urging them to bar Trump from running in 2024. Other groups are sure to take similar action as the election draws near.

Formal legal challenges have also been lodged, including a massive complaint filed on behalf of voters in Colorado by the Washington, D.C.-based ethics watchdog group Citizens for Responsibility and Ethics (CREW), seeking to force Colorado’s secretary of state to declare Trump ineligible. CREW hopes to build on a victorious suit it filed last year that removed a New Mexico county commissioner from office for participating in the Jan. 6 insurrection.

Other lawsuits are pending in Utah, Minnesota, and New Hampshire. However, a federal judge in Florida dismissed a similar case late last month.

Tribe and Luttig predict that eventually a case will reach the Supreme Court and “test the judiciary’s ability to disentangle constitutional interpretation from political temptation.”

What happens when the issue arrives before the nation’s most powerful judicial body remains unknown. But if you think that John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett will vote to boot Trump from the ballot, I have a large wager to make with you.