Section 3 of the Fourteenth Amendment disqualifies people from holding an office under the United States if they previously swore an oath to uphold the Constitution and then participated in an insurrection or rebellion. The last sentence of Section 3, however, says that “Congress may by a vote of two-thirds of each House, remove such disability.” That is exactly what Congress should do regarding Donald Trump and Section 3, with Democrats leading the way. Removing any use of Section 3 by judges or state officials is the best way to resolve the difficult issues surrounding the potential disqualification of Donald Trump.
The former president’s disqualification is being litigated in numerous states including Colorado, Michigan, Minnesota and New Hampshire, and no judge or court has yet disqualified him. There may be appeals, and then more appeals, over whether the president is even covered by the clause (Colorado judge said no), whether the case is a political question that the courts cannot resolve (Michigan court said it could not resolve the case on the merits), whether such challenges to Trump’s candidacy are ripe until he actually wins the election (Minnesota court said no) and numerous other thorny factual and legal issues. Should a case eventually get to the Supreme Court, the justices will almost certainly find a way to avoid the disqualification issue on the merits, all too aware that taking Trump off the ballot could have devastating consequences for our democracy.
As a legal matter, then, Trump will not be disqualified by judges from running again. That being the case, what is the benefit to Democrats, or anyone, of these efforts to disqualify him? To most Americans, and most definitely to Trump’s base, these legal machinations will look desperate and technical. Many people will think Democrats are trying to cheat the system instead of playing fair. Looking weak, however, is a terrible political strategy. Americans like strong leaders, especially in the internet age where the president can appear on your phone, tablet or laptop at the click of a button.
There is a better road for Democrats to take. They should end the madness of trying to legally prohibit the GOP front-runner and former President of the United States from running again. As the Colorado judge found, such an extreme measure should only be taken when the facts and law are clear. She said that ”part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3.” The judge is exactly right.
Senate Democrats should pass a bill formally using the last sentence of Section 3 to remove any possibility of disqualification (Congress has used this route before). The Republicans, of course, will have to go along. The announcement should be peppered with phrases like, “We will not take the vote away from the American people.” This strategy will be perceived by most Americans as strong and aggressive and will help Democrats keep the White House. The stance will also play well in congressional elections. It is also the fairest way to decide whether Trump will be president again.
The House of Representatives will have to go along. If it does not, GOP members will look foolish and weak. Democrats could proudly beat their chests and say this removal of any potential disqualification was their idea because any such disqualification would be a terrible mistake.
The American people like winners, not technocrats. And this strategy would show that Democrats are not afraid of Donald Trump. It is a political winner, especially as there is almost no chance a legal strategy of disqualification will work.
There are plausible objections to this plan. Will donors to the Democrats be upset and give less? That result is highly unlikely to happen given our extreme polarization. Moreover, once it is clear Trump cannot be disqualified, the need for more money for the Democrats’ nominee will only go up.
Some may object along the lines that “the law is the law,” and Section 3 applies to Trump, so the judicial system should disqualify him. Again, this will not happen, but Trump’s martyr status will only increase as the various cases are appealed. Better to remove the Section 3 issue entirely from the political process and let Democrats argue that America should not re-elect Donald Trump for all the reasons America should not re-elect Donald Trump.
Courts, even American courts, cannot and should not try to change the world. Absent unequivocal textual certainty that Trump should be disqualified, and we are worlds away from that certainty, courts will and should continue to find ways not to disqualify the former president from being on the ballot. Congressional Democrats should recognize that reality and use it to their political advantage. There is no better road to take on the way to the 2024 presidential election.
Eric Segall is a professor of law at the Georgia State University College of Law and the author of Supreme Myths.
Suggested citation: Eric Segall, Congress Should Block the Disqualification of Donald Trump Under Section 3 of the 14th Amendment., JURIST – Academic Commentary, November 29, 2023, https://www.jurist.org/commentary/2023/11/congress-should-block-the-disqualification-of-donald-trump/.
This article was prepared for publication by JURIST Commentary staff. Please direct any questions or comments to them at commentary@jurist.org
