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The Relief Valve of Section 3

To no one’s surprise, the Supreme Court has granted expedited cert to review the Colorado Supreme Court’s decision to disqualify Trump from the state primary ballot.

The petition for a writ of certiorari is granted. The case is set for oral argument on Thursday, February 8, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024. Respondents’ briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, February 5, 2024.

According to a panel of four deep thinkers, one of whom was a comedian of no renown and none of whom reflected any depth of legal knowledge, with MSNBC’s Stephanie Ruhle, there is no way this ruling won’t be swiftly affirmed unless the hack Court, with three Trump appointees sworn to do his bidding, proves itself venally partisan. Apparently, they were unable to locate the telephone number of any of the vast array of lawyers and scholars who appreciated that this was a very difficult decision that could well and fairly go either way. Maybe they had better things to do on a Friday night.

But regardless of which way the Supreme Court goes, there remains an option that gets few mentions and eludes those who see this as a no-brainer, as noted in a NYT op-ed by Indiana lawprof Gerard Magliocca.*

Unlike other constitutional provisions, Section 3 of the 14th Amendment draws a sharp line between law and politics. The first part of Section 3 is a legal command about who cannot hold office that focuses primarily on individual conduct and does not require congressional action. But the second part says that “Congress may by a vote of two-thirds of each House remove” a disqualification for any reason.

The framers of the 14th Amendment deliberately gave Congress — not the president or the Supreme Court — the power to grant a Section 3 waiver on public policy grounds. Congress’s amnesty authority for disqualification from office is the equivalent of executive clemency in criminal cases, which can be exercised in the interests of justice or for the common good.

Georgia State lawprof Eric Segall, no fan of Trump he, raised a similar point.

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.

To the extent there are very legitimate questions as to whether the president (and VP) are officers of the United States, and/or are covered the disqualification provision that expressly applies to Senators and Representatives, but makes no mention of president, the framers of the Fourteenth Amendment included a political safety valve, no questions asked, that would avoid the whole question and accomplish two things: First, it would allow Trump to be on the ballot regardless of his engagement in insurrection. Second, it would allow Biden to beat him and win by being elected by the People, that good ol’ democratic way so many people are talking about.

But nobody seems to want to go this route. The public is almost entirely unaware of this safety valve which moot the opening of Section 3 by invoking its concluding sentence.

Section 3 Disqualification from Holding Office

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, 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 support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Eric notes that this election is almost certainly not going to be decided by the Supreme Court holding that Trump is disqualified from the ballot, despite what the consensus on MSNBC has to say about it.

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.

Piggybacking on this, Gerard says the quiet part out loud.

 Amnesty is absent from the Section 3 conversation because it would require Mr. Trump’s friends and foes to face some uncomfortable truths. Republicans would have to admit that their leader committed a grave constitutional wrong and can serve in office again only if Congress lets him out of the penalty box. Democrats would have to admit that they want the former president to get a special privilege from the law and would need to vote for that gift.

Both sides are hoping that the Supreme Court will rescue them from going to Congress by riding roughshod over Section 3’s text, structure and history and using any legal excuse to call upon its own “wisdom” or “common sense” to give Mr. Trump a pass.

The Supreme Court will, one would hope, reach its decision on the law, using the basics of textual interpretation if not originalism, and issue a decision that will certainly give rise to one side of the other calling the Court partisan, since there is no other way either tribe can lose but for an evil Supreme Court. But Congress could take this out of the Supreme Court’s hands and simply give Trump a pass, “remove the disability,” and let him lose the election in a crushing defeat. Or not.

*Gerard, also a blawger at PrawfsBlawg, was credited in the NYT at the top as having “researched Section 3 of the 14th Amendment extensively and is the author of two legal papers on the provision.” Not until the bottom did it mention that he was a professor at Indiana University McKinney law school and nowhere did it mention that he held a chaired post.

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