The Fourteenth Amendment's Section 3: Is It Impeachment Lite, or a Recipe for Chaos in the Courts?
The Fourteenth Amendment's Section 3: Is It Impeachment Lite, or a Recipe for Chaos in the Courts?
September 10, 2023
My apologies for being a week late with this. I underestimated the complexity of this subject, and in the writing process learned a lot. So, with that in mind, here goes:
We have seen many recent and informative discussions about Section 3 of the Fourteenth Amendment (hereinafter XIV), especially following the pre-print release of an article by Baude and Paulson slated to appear in the Penn Law Review (The Sweep and Force of Section 3) next year. Most of the focus has been on the movement to disqualify Donald J. Trump from running for or becoming president if (and that's a big if) he were to be elected. But broader questions have been raised and therefor some further discussion and proposals for the orderly and efficient application of Section 3 are needed. With that in mind, I believe it would be useful to have a more in-depth discussion of the implications of Section 3's “self-executing” feature and of the Section's intersection with the impeachment process.
XIV is the second of the so-called Civil War amendments. It was proposed and passed by the Senate on June 8, 1866, and by the House on June 13, 1866, and ratified on July 9, 1868. It is important to note that there was an overwhelming majority of Republicans in the Congress in the wake of the Civil War, notably the 40th Congress from 1867-1869. That Congress required former Confederate states to ratify it as a condition of regaining federal representation, and with votes to ratify by Louisiana and South Carolina the required three-fourths majority was met.
In the run-up to, and during, all this, Andrew Johnson, who became President after the assassination of Lincoln on April 5, 1865, vetoed the Civil Rights Act of 1866 that April. Then, for other reasons, at least ostensibly, 11 Articles of Impeachment were adopted by votes in the House on March 2 and 3, 1868. Trial in the Senate began on May 6 and concluded with acquittal by one vote on May 26, and ratification of XIV followed less than two months later.
Curiously, the language of Section 3 makes no specific mention of the president or vice president in its description of whom it covers. In contrast it does explicitly refer to “a Senator or Representative in Congress, or elector of President or Vice President”. Arguably, of course, the president and vice president are “officer[s] of the United States”, but the reasons why the president and vice president are not specifically mentioned is nonetheless not clear.
In a similar vein, Section 3 does not explicitly refer to the federal judiciary (a member of which of course would also be subject to impeachment under Article II, Section 4), except possibly as, again, “an officer of the United States”, yet specifically references a “judicial officer of any State”.
Perhaps it was understood that impeachment would cover that eventuality, but in such an instance automatic disqualification from running for either of those offices would not apply unless there were trial and conviction in the senate. An interesting question is (assuming Section 3 does apply to a president or former president) whether a Section 3 disqualification would be possible if a president had been already been acquitted on the same conduct in a senate trial of impeachment, recognizing that in each case the penalties are essentially the same, are not criminal in nature, and do not preclude adjudication on criminal charges based on the same conduct in a court of law.
The pending criminal trials of Trump, and of others involved in the events surrounding the Jan 6 insurrection may lead to additional evidence that in turn produces more indictments, or that may justify a determination that Section 3 does disqualify Trump, members of his administration, or of members of Congress, even absent a criminal conviction. That remains to be seen.
Of course, Senators and Representatives are explicitly mentioned, and it is worth noting at this point that impeachment of a member of Congress was likely considered not lawful at the time XIV was drafted, based upon precedent seemingly established in the impeachment of Senator William Blount in July, 1797. Following that impeachment, the Senate, under its rules, expelled him by a greater-than-two-thirds majority, and the Senate then dismissed the trial on impeachment as lacking jurisdiction (and, of course, moot).
So whether members of congress can lawfully be impeached under Article II, Section 4 may not matter, unless, of course, a member of the House who cannot be expelled for lack of two-thirds majority would be arguably subject to a resolution to impeach by majority vote and subsequent trial and conviction by a two-thirds majority in the Senate. Or, either house, under its own rules may simply vote to refuse to seat a newly-elected member.
In another sense, though, the scope of who is covered by XIV is broader than that of impeachment, as it includes holders of state offices, including the executive and members of the judiciary.
So we come to the matter of whether the removal and/or disqualification of individuals covered is self-executing. Baude and Paulson are unequivocally of the view that such is the case, and compare it to other requirements, such as age and having to be a “natural born Citizen”. In the vast majority of instances where those issues may be raised proof is readily at hand and for practical purposes conclusive without further ado. That is in contrast to how one establishes whether a person has engaged in insurrection or rebellion, or given aid or comfort to enemies of the United States, presumably foreign or domestic. Baude and Paulson assert that the degree of ease of proof is irrelevant to reaching the conclusion that the disqualifying provisions of XIV are self-executing. That may be so in theory, but what is very much relevant is the likelihood that litigation would ensue if, say, a Secretary of State refused to allow the individual in question a place on the ballot.
In the immediate aftermath of the Civil War, when in most cases proof of insurrection or rebellion or aid or comfort may have been so clear that initiating litigation to prove otherwise would likely be futile, and the likelihood that a disqualification would be removed by a two-thirds vote in both houses of Congress would be virtually nil. That is, the academic concept of self-executing would conform to the practical aspect, i.e., simple, as in the case of rejecting an individual because they did not meet the age requirement.
Moreover, if we look back at 1868, the year that XIV was ratified, Republicans had an overwhelming majority in both houses of Congress: on the order of over eighty percent in both the House and Senate. So, if someone in a position of authority decided that an individual had engaged in insurrection, etc. could not be seated, each house could exclude or expel that member by two-thirds vote anyway. And, of course, at that time impeachment and trial in the senate would have been much more likely to succeed. That likelihood would be a strong incentive for an individual to resign, as indeed proved to be the case as recently as Nixon did because of Watergate. Not so in today's political environment.
In considering the concept that the provisions of Section 3 are self-executing, we should also be mindful of the comments of Michael McConnell, Stanford law professor and former U.S. Court of Appeals judge, on the subject of summary determinations of disqualification under Section 3, "We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic."
Consider the case of Eugene Debs, who was convicted of “obstructing and attempting to obstruct the recruiting service of the United States” under the 1917 Espionage Act, in 1918 (unanimously upheld by the Supreme Court in 1919) but was still permitted to run for president against Woodrow Wilson in 1920 while in jail, appearing on 40 ballots. Indeed, he received more than 900,000 votes. It is not clear (he had previously sworn an oath as an Indiana legislator) why no one seems to have raised the issue of Section 3 at that time.
It appears that the first such attempt since then to disqualify anyone under Section 3 was the case of Marjorie Taylor Greene in Georgia in 2021, and a multitude of filings and procedural rulings followed. She eventually prevailed, based on the court's determination that the petitioners failed to prove the requirements of Section 3 by a preponderance of evidence. Not long after, an action, again by private individuals and entities, did lead to the disqualification of Couy Griffin in New Mexico. There, the court had numerous findings of fact it deemed sufficient to support disqualification under Sec. 3. In neither of these cases was standing a factor in the final decision.
There has been a multitude of other such cases in different states. All of those already decided appear to have been dismissed on the basis of standing. And a number of individuals and other private entities have urged (or have urged others to urge) state Secretaries of State to disqualify certain individuals under Section 3.
In all likelihood there will be many, many more court cases, both federal and in the states, where there will be issues of removal, with all the differences of procedural and substantive issues in the balance. Ultimately, the Supreme Court may be faced with deciding what evidence is needed in order for disqualification under Section 3, as well as the issue of standing. Or, it may simply hand the ball off to Congress to enact appropriate legislation under XIV's Section 5. An inevitable side effect of all this litigation will be more and more delays.
What, then, must Congress do? Ideally, it would fashion legislation that would clarify the language of Section 3 and set forth what is required to prove disqualification, and the procedure for doing so. The authority for such action comes not only from Article XIV, Section 5 (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article”), but also from Article I, Section 4, cl.1 as well (“ . . . but the Congress may at any time by Law alter such [state legislature-enacted] Regulations.”).
Some suggested provisions, just as a starting point for discussion, and not intended to be exhaustive:
First, identify specific crimes or other actions of legal significance that constitute “insurrection or rebellion” or “aid or comfort” to enemies of the United States, bearing in mind that disqualification itself is not a criminal finding.
Second, require that indictment for any of the so-designated criminal violations require immediate temporary disqualification to run for office, or suspension if already in office, pending resolution, and that upon conviction the individual is permanently disqualified from running for or holding specified offices.
Third, clarify as to whether the President and Vice President are subject to the provisions of Section 3, and if so whether impeachment precludes an action under Section 3, or vice versa: basically, whether non-criminal double jeopardy is impermissible.
In the case of Donald Trump, and others, especially members of Congress who may face charges in connection with the Jan 6 insurrection, there will obviously be ex-post facto issues. That is true for many already convicted of crimes in connection with Jan 6. Moreover other issues may arise in the case of Donald Trump, because he has already been acquitted on conduct surrounding Jan. 6, where conviction would have removed him from office and most likely resulted in his being barred from office for life. But that is not a reason for Congress not to act, because a similar scenario could arise in the future and we should prepare for it now.
Whether Congress is up to that task remains to be seen. It is additionally problematic in that several current members may have had some involvement in Jan. 6 – anything from voting to disqualify the Electoral College count, up to planning and coordination with the insurrectionists.
As to issues of ex post facto and bills of attainder, Section 3 already proscribes certain activity, i.e., “insurrection or rebellion . . . or aid and comfort . . . ” and the Congress would be merely defining those terms and presumably declaring the standard of proof required, bearing in mind that conviction of a crime (e.g. 18 U.S. Code §2383, which employs almost identical language of Section 3) is not necessarily required. That said, the issues may still be raised and argued.
All such legislation could, of course, be done at the state level, however, there is sure to be wide variation after the issue is ground through the sausage mill of each different state legislature often after multiple court cases have been decided.
It's going to be an interesting year, to say the least.
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Notes
William Baude and Michael Stokes Paulson, The Sweep and Force of Section Three, 172 U. PA. L. Rev. (forthcoming 2024) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html
J. Michael Luttig and Laurence H. Tribe, The Constitution Prohibits Trump From Ever Being President Again, The Atlantic, 8/19/23, available at https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/
https://en.wikipedia.org/wiki/40th_United_States_Congress
https://www.citizensforethics.org/wp-content/uploads/2022/09/D101CV202200473-griffin.pdf
https://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title18-section2383&num=0&edition=1999
https://abcnews.go.com/Politics/judge-rules-gop-rep-marjorie-taylor-greene-stay/story?id=84314352
https://freespeechforpeople.org/challenge-to-marjorie-taylor-greene-under-14-3-insurrectionist-disqualification-clause/ https://thehill.com/opinion/judiciary/4181061-the-14th-amendment-case-against-trump-disregards-history-and-precedent/
Debs v. United States, 249 U.S. 211 (1919) available at https://supreme.justia.com/cases/federal/us/249/211/ https://tile.loc.gov/storage-services/service/ll/usrep/usrep249/usrep249211/usrep249211.pdf
https://tile.loc.gov/storage-services/service/ll/usrep/usrep249/usrep249211/usrep249211.pdf
https://www.oyez.org/cases/1900-1940/249us211
https://www.independent.org/news/article.asp?id=14659
https://reason.com/volokh/2023/09/09/analyzing-removal-jurisdiction-over-section-three-lawsuit-in-colorado/ removal – state v. federal forum, nd different standards on standing
https://electionlawblog.org/?p=138620
Since the article by Baude and Paulsen, there has been more and more discussion about whether the President is an "officer" of the Untied States, much of it summarized in a more recent article, https://reason.com/volokh/2023/09/12/professor-calabresi-in-wsj-president-trump-can-not-be-disqualified/
All that aside, what about a former president, like Trump, or a former federal judge, who is now just a person? Did the drafters of the Fourteenth Amendment really mean that “No person shall . . . hold any office, civil or military” does not apply to a former president? Does the plain language “ . . . previously taken an oath . . . as an officer of the United States . . . ” exclude having taken an oath as President?