The Supreme Court will hear Thursday whether former President Donald Trump should be barred from becoming president again under the 14th Amendment. The case might also affect if President Joe Biden could be barred from office.
Under Section 3 of the 14th Amendment, anyone who has taken an oath to uphold the Constitution and held state or federal office and has engaged in “insurrection or rebellion” against the United States cannot hold state or federal office except that “Congress may by a vote of two-thirds of each House, remove such disability.”
The issues the court will consider include whether Section 3 is limited to the Civil War, whether the Jan. 6 riot at the U.S. Capitol constituted an “insurrection” within the meaning of Section 3, whether the office of president is included among the offices from which an individual can be barred, whether President Trump “engaged in” an insurrection, and whether Section 3 is self-executing or must be interpreted and enforced by federal legislation.
In addition, as Jason Riley notes in The Wall Street Journal, a brief filed by the National Republican Senatorial Committee introduces another aspect of this case, that Section 3 of the 14th Amendment does not bar anyone from running for any office but only from holding office (under certain conditions).
If the “disability” imposed by Section 3 were a permanent bar, then there would be no question that a person disabled by Section 3 could not run for an office he or she could not hold. Yet, as that brief also reminds us, Congress has the authority to “remove such disability” by a vote of two-thirds of each chamber. So a candidate for state or federal office disabled by Section 3 can run for an office, since Congress ultimately determines if a winning, disabled candidate can hold it.
This provision of Section 3 presents a host of problems. There is neither any requirement that Congress take such a vote nor any requirement that it do so within a period of time. Congress could vote, if it chooses to vote, after Election Day and even after the elected official has taken the oath of office.
The brief points out that Section 3 of the “Twentieth Amendment expressly contemplates and addresses the possibility that a President-elect could be disqualified from office on Inauguration Day. It directs: … ‘if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.’” Under the provision, the president-elect can be inaugurated but the vice president is acting president until Congress votes on whether or not to remove the president-elect’s disability.
Neither Riley nor the brief discusses what authority determines that a candidate for president (or any other state or federal office) is subject to Section 3 disability.
Applications to Biden Too
It is not only former President Trump whose campaign is under the cloud of disability. President Biden’s is too. Arguments can easily be made that he, while serving as president or vice president or senator, was engaged in an insurrection or “giv[ing] aid or comfort to the enemies” of the Constitution. There is evidence of Biden’s giving aid and comfort, such as allowing a Chinese spy satellite to traverse the entire United States, conspiring with China and Mexico and cartels to import fentanyl, conspiring with cartels to promote sex slavery, and engaging in a criminal and traitorous enterprise of transporting illegal migrants throughout the United States under cover of darkness and without notice to local authorities or the people.
At any time, even after the November election and even after a January 2025 inauguration, Congress could vote on removing President Trump’s or President Biden’s supposed disability.
Other Complications
Note that Congress does not vote on whether there is a disability but on whether, assuming there is a disability, it should be removed. If even one chamber of Congress held a vote on whether to remove the disability, would that imply as a matter of law that there is a disability, thereby overturning the election results?
This would be problematic. Here’s why: How does a member of Congress who does not believe there is a disability then vote on the resolution to remove the disability? Whether the member votes for or against removing the disability, the vote implies there is a disability. It is a conundrum like that faced by someone who is granted a pardon. Can the convict accept a pardon while continuing to protest his innocence?
Yet two more problems not raised by Riley or the brief: Section 3 does not specify which Congress has the authority to vote on the issue of removing the disability and if its vote is final. The Congress could be the one in office during the election year, that is, the lame-duck Congress. Or it could be the new Congress that comes into office in the January following the November election. If the lame-duck Congress voted to remove the disability, could the new Congress vote to reverse the prior vote and not remove the disability? Or vice versa: If the lame-duck Congress voted not to remove the disability, could the new Congress vote to remove the disability?
A related question is whether a congressional vote is valid for the lifetime of a candidate. Could a Congress vote against removing the disability for one election cycle but a later Congress vote to remove it for a subsequent election?
Another question: If Congress removes a Section 3 disability, is it for all offices? Could a Congress vote against removing the disability for one office, such as governor, but not remove it for another office, such as state senator?
Finally, is a vote of Congress on removing a Section 3 disability judicially reviewable?
These questions should cause us to consider either repealing or amending Section 3 or enacting legislation to implement Section 3.
James M. Thunder has retired from the practice of law. He is the author of more than 250 publications on law, public policy, history, biography, and religion. He is the co-author of a forthcoming compendium of biographies of the 49 men and women who have served as U.S. attorney for Washington, D.C., since 1801.
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