As the 2024 United States presidential election grows closer, members of the Republican Party have been debating who will represent them on ballots across the country. As of October 2023, former President Donald J. Trump has been the obvious front-runner in these debates. Despite his leading status, some legal scholars have suggested that he may not be eligible to serve as President. These scholars cite Section 3 of the 14th Amendment to the U.S. Constitution, which provides circumstances under which an individual may be disqualified from holding office. The theory has gained significant attention. The January 6 Committee invoked Section 3 against President Trump during their investigation into the January 6 Capitol riots. Free Speech for People, a liberal-leaning national non-profit, cited Section 3 in their written request to the Secretaries of State of New Hampshire, Florida, New Mexico, Ohio, and Wisconsin, asking the Secretaries to bar Trump from the 2024 ballot in their respective states. Various lawsuits aimed at barring Trump from the ballot have also been filed in Colorado, Texas, and Florida. While the legal argument has garnered support from liberals and conservatives alike, the Section 3 argument may not as easily disqualify Trump as legal theorists have made it appear.
Written in the aftermath of the American Civil War, Section 3 was specifically developed to prevent members of the Confederacy from returning to Congress in the post-war period. For this reason, the clause has very stern wording:
“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.”
Proponents of the Section 3 argument have adopted quite a simple line of reasoning: Trump is considered as “previously taken an oath … as an officer of the United States” because he swore to protect and defend the U.S. Constitution at his 2017 Presidential Inauguration. Further, in the months after the 2020 Presidential election, Trump, insisting that the election was rigged against him, actively encouraged his supporters to challenge the election result. Trump’s words became increasingly violent, inspiring his supporters to attack the Capitol building while Congress verified the 2020 election result on January 6, 2021. As Trump’s supporters were actively attempting to overturn a valid national election result, their actions should be considered a violent uprising against the U.S. government, also known as an insurrection. While legal proceedings to prove January 6 was an insurrection are ongoing, at least four individuals have already been declared guilty of seditious conspiracy for their role in the Capitol riots. Given Trump’s role in provoking the violence at the Capitol, he can also be considered as having “engaged in insurrection.” Trump’s praise of his supporters’ violence after January 6, should be considered to be a form of providing “aid or comfort to enemies” of the United States. As a result, advocates of the Section 3 theory conclude that because Trump has engaged in these actions he is no longer eligible to be President of the United States.
Increased attention over Section 3 has spawned discussion of possible interpretations of the clause. It should not be surprising that legal scholars and commentators disagree on several aspects of Section 3. Most controversial has been whether Section 3 is self-enforcing, that is whether or not some body would need to physically declare Trump eligible. Some legal scholars argue that Section 3 is not self-enforcing and would, therefore, require a federal judge to bar Trump from serving as President. Law Professors Willam Baude and Michael Paulsen have adopted a more literal interpretation, asserting that as no enforcement mechanism is given in the clause itself, no enforcement mechanism is required. Although not disagreeing with Baude and Paulsen, other law scholars have adopted an alternate theory that sees an unilateral agreement of Trump’s ineligibility as unlikely. They have cited Section 5 of the 14th Amendment, which gives Congress authority to enforce the 14th Amendment (including Section 3) should it be considered necessary, to suggest that Congress could enact legislation to prevent Trump from serving as President.
At first blush, Baude and Paulsen appear correct. The plain text of Section 3 does not require a specific individual or judicial or legislative body to declare Trump ineligible to hold office. It follows that, given the events leading up to and after January 6, Trump should immediately be considered ineligible to run in the 2024 election. However, it is likely that leading members of the Republican Party will not allow Trump to be disqualified so easily. In other words, the degree to which Section 3 will be enforced is likely a largely political decision. Legal commentator Noah Feldman has said as much: if Trump is barred from participating in the election, either at the state or national level, he and the Republican Party will likely launch a legal challenge, at which point a judge would be required to determine if Trump is eligible to serve as President. While the Supreme Court recently declined to hear a case invoking Section 3 for procedural reasons, other federal courts may ultimately need to decide the issue.
Even if it is eventually determined that no enforcement mechanism is needed, another debate about Section 3 likely ensures the involvement of the judicial system. Theoretically, Section 3 was intended to be independent of criminal proceedings – individuals did not have to be found guilty of insurrection to be disqualified from holding office. Few, if any, legal scholars have adopted a contrary view. Rather, they emphasise that if Section 3 was applied, Trump would not be deprived of the rights given by the Due Process clause, but would merely be declared ineligible to serve as President. However, in a country that believes no one is guilty of any crime until they are proven so in a court of law, it is difficult to bar Trump from re-election until it has been convincingly demonstrated that he either participated in an insurrection or gave aid and comfort to those that did. The precedent appears to be on Trump’s side here. Section 3 claims against Representatives Majorie Taylor Greene, Paul Gosar, and Andy Biggs were dismissed because of insufficient evidence of participation in the insurrection. Only one individual has been removed from his position because of Section 3: a New Mexico county commissioner was removed from office after it was proven that he had participated in the January 6 attack on the Capitol. Section 3 supporters believe there is an excess of evidence to prove Trump’s involvement and support of the January 6 attack. While criminal trials are underway to formalise this opinion, such proceedings are likely to take months and verdicts may not be rendered until after the 2024 election. This is to say nothing of the legal and political debate that will likely occur if Trump is re-elected, and then found guilty of being involved in the insurrection.
There has yet to be a strong argument that Section 3 does not apply to Trump and the 2024 Presidential election, except from Trump himself. In other words, legal scholars seem unanimous in their opinion that Trump’s actions before and after the January 6 riots make him ineligible for re-election under the criteria outlined in Section 3. It then remains an issue of implementation. Political and legal realities, however, have inspired a great deal of pessimism. The intention and plain text of Section 3 should be enough to bar Trump from re-election, however, disagreement over Section 3’s self-enforcing nature and possible need for criminal conviction call into question whether the clause can come into action in time for November 5, 2024. Therefore, asNoah Feldman writes, while “Trump is manifestly unfit to be President” as far as Section 3 goes, it might be “up to voters to block him” from returning to the Oval Office.