Disqualified President’s Day: Navigating the Enforcement of Section 3 in a “Dangerously Unclear” Legal Framework

So for present purposes let’s assume that the Supreme Court allows Donald Trump to remain on the ballot but says nothing to undercut the possibility that he could be prevented from assuming the presidency under section 3 of the 14^th amendment. Do other mechanisms exist to stop Trump from taking office on the ground that he is an insurrectionist disqualified by section 3?

All parties in Trump v. Anderson agree that section 5 of the 14^th amendment, which provides “Congress shall have the power to enforce, by appropriate legislation, the provisions of [the 14^th amendment],” allows Congress to establish statutory methods for the enforcement of section 3. Trump asserts that such federal legislation is the only way the judiciary may enforce section 3. See Trump Brief at 18. Furthermore, Trump maintains (and to my knowledge no one has disputed) that the only such legislation currently in force is the Insurrection Act, 18 U.S.C. § 2383. Accordingly, Trump’s position is that Congress has effectively left “criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders.” Trump Reply Brief at 20.

The Insurrection Act provides that “[w]hosoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid and comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 18 U.S.C. § 2383 (emphasis added).

At oral argument (p. 54) Justice Kavanaugh asked Trump’s counsel specifically about this law:

Justice Kavanaugh: [J]ust to be clear, under 2383, you agree that someone could be prosecuted for insurrection by federal prosecutors and, if convicted, could be or shall be disqualified then from office?

Mr. Mitchell: Yes. But the only caveat that I would add is that our client is arguing that he has presidential immunity. So we would not concede that he can be prosecuted for what he did on January 6^th under 2383.[i]

Mitchell’s answer is interesting. Apart from the caveat about presidential immunity (which thus far has been resolved against Trump by both the trial court and D.C. Circuit), Mitchell acknowledges that Trump could be tried under the Insurrection Act and, if convicted, barred from future office. Mitchell thereby concedes Congress’s broad powers to enforce section 3 through legislation. Notably, Mitchell did not question the constitutionality of the Insurrection Act on the ground that it sweeps more broadly than section 3 (it applies to anyone who engages in insurrection, not merely oath breakers who previously held a federal or state position identified in section 3), nor did he claim that it would be inapplicable to Trump because he had never been an “officer of the United States” covered by section 3. He also did not dispute that the Insurrection Act’s disqualification from “holding any office under the United States” would prevent Trump from again assuming the presidency. Finally, he did not address the fact that the Insurrection Act’s disqualification penalty, unlike that of section 3, cannot be lifted by Congress.

Trump, of course, has not been charged under the Insurrection Act and there is little chance he will be, much less that he would be charged and convicted before the November election. However, Congress could (at least in theory) act legislatively before January 20, 2025 to provide other enforcement mechanisms.

We have one example of an effective enforcement mechanism Congress could consider. In the 117^th Congress the House passed H.R. 8873, the Presidential Election Reform Act, which was co-sponsored by Representatives Zoe Lofgren and Liz Cheney. Section 10(c)(2)(D) of the bill specified that one of the grounds for objecting to a state’s electoral votes during the electoral count process would be that “[o]ne or more of the State’s electoral votes were cast for a candidate who is ineligible for the office of President or Vice President pursuant to– . . . (iii) section 3 of the Fourteenth Amendment to the Constitution of the United States.”

Had this bill been enacted into law, it likely would have been valid as an exercise of Congress’s authority under section 5 of the 14^th amendment, and perhaps (but more debatably) a necessary and proper measure to carry out Congress’s power to count electoral votes under the 12^th amendment. However, (spoiler alert) the bill was not enacted and the reforms to the Electoral Count Act adopted in the 117^th Congress did not address section 3.

Arguably, however, Congress’s existing powers to count electoral votes under the 12^th amendment and/or the Electoral Count Act would allow it to reject votes cast for a candidate disqualified under section 3. As Professor Muller points out in his amicus brief (p. 20), in 1873 Congress did not count electoral votes cast for Horace Greeley, who had died before the date on which the electors voted. This (again arguably) would be a precedent for the proposition that Congress could reject votes for Trump under the Electoral Count Act on the ground they were not “regularly given.”

Such a step, though, would be highly questionable. Professors Baude and Paulsen maintain, and I tend to agree, that whatever authority Congress has to decide whether electoral votes are genuine and valid, or to decide between competing slates of electoral votes which purport to be genuine and valid, does not extend to reviewing how a concededly genuine elector decided to vote. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three 33 (forthcoming U.Pa.L.Rev. 2024). Election law experts have no clear answer on this question. Muller takes no position, while election law professors and experts Ned Foley, Ben Ginsberg and Rick Hasen say in their amicus brief (pp. 14-15) that the rules are “dangerously unclear” and “there is no playbook for when the candidate receiving a majority of votes is declared ineligible to occupy the office.”

Furthermore, the 20^th amendment indicates that an ineligible or disqualified candidate may be elected president, but cannot serve unless and until the disqualification is removed. Section 3 (I know) of the 20^th amendment provides that if “before the time fixed for the beginning of his term . . . the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” In contrast to rejecting electoral votes as part of the 12^th amendment vote count, which would likely result in throwing the election to the House and electing to the disqualified candidate’s opponent, the process set forth in the 20^th amendment allows the vice president elect to act as president until such time as a president qualifies. The latter process is not only more grounded in the constitutional text, but it makes more sense as a policy matter.

Indeed, the aforementioned H.R. 8873 provided that if an objection to a candidate’s qualifications under section 3 of the 14^th amendment (among other grounds) were sustained, the candidate would be deemed to have failed to qualify under the 20^th amendment, but “the electoral votes cast for such candidate shall be counted for the purposes of determining whether the candidate has been elected.” Although this statutory provision did not become law, its passage by the House arguably supports the proposition that the electoral vote count process can be used to make objections to the qualifications of a presidential or vice presidential candidate pursuant to the 20^th amendment. Moreover, because the Electoral Count Act is arguably (you may sense a pattern here) just a statutized rule which can be altered by congressional resolution or parliamentary rulings, it is possible that the 118^th or 119^th Congress could recognize the right to object to qualifications during the electoral count process without any statutory enactment.

It should be noted that one of the leading experts on the 20^th amendment (maybe the only expert to be honest), Edward Larson, submitted an amicus brief expressing the view that the 20^th amendment does not give Congress any power to judge the qualifications of presidential candidates. He explains (p. 9) that “[w]hile the amendment specifies that the vice president elect shall serve in the stead of a president elect who has ‘failed to qualify,’ that provision is entirely silent on who determines disqualification.” While this is true, it seems like a reasonable inference that someone should determine disqualification, and Congress seems like the most obvious choice to exercise that responsibility, particularly if the Court rejects Professor Larson’s position that the states should be able to exercise that power through their control over ballot access. Nonetheless, it is fair to say, as this entire discussion has shown, that there are substantial uncertainties presented by any approach to enforcing section 3 with regard to Trump.

Finally, Professor Magliocca points out here that the electoral count reforms enacted in the 117th Congress (the Electoral Count Reform Act of 2022) do provide a federal forum for any “aggrieved” presidential or vice presidential candidate to challenge the electoral slates certified by any state. He suggests this could provide a vehicle to challenge Trump’s qualifications under section 3, but he notes that the law does not provide a cause of action, which would have to be found elsewhere in state or federal law (and which might be undercut in any event by the decision in Trump v. Anderson). Another problem that I see is that the challenge here would not properly be to the state’s electoral certification but to the candidate that the electors ultimately vote for. Moreover,  Trump’s opponent will not necessarily be “aggrieved” at all if the result of his disqualification is to allow the vice president elect to act as president under the 20th amendment. In short, this is a mechanism that will be hard to use unless Congress acts legislatively to amend and clarify its parameters.

One thing seems abundantly clear: if Trump wins the election in November 2024, and particularly if he is also convicted this year for his attempts to overturn the 2020 election, there will be objections to electoral votes in his favor during the electoral vote count in January 2025. There will also doubtless be many other ideas floated or efforts made to stop him from taking office. Professor Muller even suggests that perhaps the chief justice would be bound by the 20th amendment not to administer the oath! Given the “dangerously unclear” legal framework, it is reasonable to expect that the situation could trigger a constitutional crisis of greater magnitude than anything that has occurred since the Civil War.

Responsible members of Congress should therefore engage now in planning for that eventuality. This could take the form of introducing legislation or concurrent resolutions designed to establish a process by which objections to a president elect’s qualifications under section 3 of the 14^th amendment could be made, debated, and acted upon. Anything else invites a period of massive uncertainty and potential instability between election of 2024 and the inauguration of 2025.

 

[i] It is, of course, Mitchell’s job to represent his client, but one has to chuckle at the string of legal good fortune which, according to his lawyers, has befallen Trump. First, his legal team successfully defended his 2021 impeachment trial on the ground that he was no longer president and therefore could be neither convicted nor disqualified from future office, no matter how grave his offenses, due to the happenstance that they were committed so late in his term; instead, they argued that he could only be held accountable as a private citizen according to ordinary criminal law process. Second, Trump’s lawyers in ballot access cases maintain that the president is not an “officer of the United States” within the meaning of section 3, such that presidents who have held no other covered federal or state position (a category consisting of Trump alone) may not be disqualified for engaging in insurrection, a loophole that Mitchell acknowledged to have no policy rationale. Third, they argue that even if Trump were subject to section 3, he cannot be removed from the ballot by the states because Congress has established prosecution under the Insurrection Act as the exclusive means of enforcing section 3. Finally, Trump’s criminal defense attorneys contend that private citizen Trump enjoys absolute immunity for criminal acts committed as president and therefore cannot be prosecuted under the Insurrection Act (or subject to its disqualification penalty) or otherwise be held accountable under criminal law.