The dormant legal battle that could define 2024: Is Trump really eligible?

The other, more politically perilous option would be for one or more states to simply adopt the theory and simply refuse to put Trump on their ballots. That could force Trump to file his own lawsuit asking the courts to order his candidacy reinstated in those states. So far, no state has decided to exclude Trump from the ballot, although the country’s secretaries of state are discussing the matter among themselves.

Either scenario could plunge the courts, and likely the Supreme Court, into an uncertain debate over the meaning of the Insurrection Clause, a 110-word long provision that was ratified in 1868 and has rarely been interpreted. – or even invoked – ever since. .

Here’s what you need to know about the 14th Amendment theory.

What is the insurrection clause?

In short, the clause states that anyone “engaged in insurrection or rebellion” after taking an oath to uphold the Constitution is barred from holding public office. When the 14th Amendment was drafted after the Civil War, the clause was intended to prevent Southern states from electing former Confederate officers to Congress.

The text in question comes from the third section of the amendment and says the following:

“No person shall be a Senator or Representative in Congress, or elector of the President or Vice President, or hold any civil or military office, in the United States or in any State, who, after having previously been sworn in as 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 uphold the Constitution of the United States, will have engaged in an insurrection or rebellion against the same, or brought aid or comfort to his enemies. But Congress can, by a vote of two-thirds of each House, remove this handicap. »

According to legal scholars claiming the provision applies to Trump, the disqualification is “self-executing,” meaning it automatically applies to anyone who meets the criteria outlined in the amendment and does not require anything else – ​​for example, a criminal conviction related to the amendment. insurrection – to trigger it. The only way around disqualification is for Congress to grant amnesty by a two-thirds majority vote in each house.

Who endorsed the theory?

Several prominent constitutional scholars have said in recent weeks that they believe the 14th Amendment makes Trump ineligible to return to office as president.

William Baude and Michael Stokes Paulsen, two conservative law professors, have written an article slated for publication in the University of Pennsylvania Law Journal next year. They argue that the provision is intended to “encompass a wide range of deliberate participatory behavior” as qualifying for having “engaged in” an insurrection or rebellion. And they claim that Trump’s actions – particularly his efforts to pressure then-Vice President Mike Pence to prevent the electoral vote count and Trump’s “incendiary” speech encouraging his supporters to march to the Capitol on January 6 – clearly meet the standards.

J. Michael Luttig, a former conservative federal judge, and Laurence Tribe, a liberal professor of constitutional law, agree. “The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, clearly place him under the disqualification clause, and he is therefore no longer eligible to stand. become president,” they wrote in the Atlantic. last month.

What is the counter-argument?

Not all jurists agree with these interpretations of Section Three of the 14th Amendment. Skeptics say recent interpretations adopt overly broad definitions of amendment language and argue that the criminal justice system is the proper enforcement mechanism to keep someone who has participated in an insurgency from performing their duties.

Stanford Law School professor Michael McConnell, for example, cautioned against interpreting the provision “too broadly”, suggesting that the terms “insurrection” or “rebellion” should apply “only to the most violent uprisings”. against the government”, as the most serious uprising against the government. Civil war.

Others also expressed concern about the precedent of secretaries of state unilaterally disqualifying certain politicians from the ballot, suggesting such a move could be seen as undemocratic. And Trump’s impeachment could have political implications, with such an act likely to provoke a backlash from his supporters.

How would the theory of the 14th Amendment be put into practice?

Most likely, it would have to be enforced following a trial. A candidate against Trump, whether in the Republican primary or the general election, would have the most direct route to court, as they could argue that they are directly harmed by Trump’s presence on the ballot. Interest groups or individual voters could also try to sue to prevent him from participating in elections in a particular state.

In recent days, a Republican presidential candidate, John Anthony Castro, filed a lawsuit in New Hampshire claiming Trump violated the 14th Amendment and seeking an injunction that would force the state’s secretary of state to exclude Trump’s name from the ballot. And in Florida, a tax attorney has sued Trump in federal court in an attempt to disqualify him from running for president, saying his involvement in the January 6 events should bar him from holding office under the 14th Amendment. .

Alternatively, a secretary of state could preemptively exclude him from the ballot, which would almost certainly lead to Trump taking legal action over it. Some Secretaries of State have already hinted that they would at least consider whether to apply this provision. Michigan Secretary of State Jocelyn Benson said she plans to talk with her counterparts in other battleground states about how to handle the issue.

Over the summer, the legal advocacy group Free Speech for People sent letters to secretaries of state and chief election officials in nine states asking them to exclude Trump from the ballot because of the 14th Amendment. “Trump’s involvement in the violent attack on Congress to prevent the certification of Democratic election results disqualifies him from future public office,” they wrote.

Either way, the issue is likely to prompt multiple calls from Trump and his campaign or a conservative group. Any serious effort to ban him from the ballot would likely go all the way to the Supreme Court.

It has already become a controversial topic in New Hampshire. Bryant “Corky” Messner, an attorney who ran with Trump’s backing as the 2020 Republican nominee for the U.S. Senate, questioned Trump’s eligibility for the ballot and met with New York’s Secretary of State. Hampshire, David Scanlan, asking him to seek legal advice on the matter. Scanlan and New Hampshire Attorney General John Formella — both Republicans — later issued a joint statement saying Formella’s office is “currently carefully considering the legal issues involved.”

The state’s Republican Party chairman, however, said the group would “fight to ensure that candidates are not denied access to the ballot.”

How was the 14th Amendment theory adopted in the courts?

In the century and a half since the 14th Amendment was ratified, its third section has rarely been tested in court, and never against a former president.

After January 6, Free Speech for People filed a lawsuit against the Republican representative. Marjorie Taylor Greene (R-Ga.) then-Rep. Madison Cawthorn (RN.C.), arguing that the two were ineligible for office under the insurrection clause. In Greene’s case, an administrative judge found that she did not participate in the January 6 insurrection, making her eligible for re-election.

In Cawthorn’s case, a federal appeals court ruled against him, but the decision came after he had already lost his primary.