The Constitution provides that an oath-breaking insurrectionist is ineligible to be president. This is the plain text of Section 3 of the 14th Amendment to the Constitution.
“No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … 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.”
This disability can be removed with a two-thirds vote in each House.
Disqualification is based on an insurrection against the Constitution, not the government. The evidence for Donald Trump’s involvement in such an insurrection is overwhelming.
The case was decided in three separate forums, two of which were hotly contested, with Trump’s counsel actively participating.
Trump’s second impeachment trial was the first to be fully contested. Then-President Trump was impeached on January 13, 2021, for “incitement of insurrection.”
At the Senate trial, seven Republicans joined all Democrats to form a majority for conviction, but they fell short of the two-thirds vote required for removal from office.
Inciting insurrection includes “engaging in insurrection” against the Constitution “or giving aid and comfort to the enemies thereof,” which are the grounds for disqualification listed in Section 3.
The second contested proceeding was the Colorado five-day judicial due process hearing, during which the court “found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.” The Colorado Supreme Court affirmed.
On further appeal to the United States Supreme Court, the court ruled that states lack the authority to disqualify candidates for federal office, and that federal legislation was required to enforce Section 3. The court did not address the finding that Trump had engaged in insurrection.
Finally, the House Select Committee is conducting a bipartisan investigation into the January 6th attack on the US Capitol. More than half of the witnesses who testified during the nine public hearings were Republicans, including members of the Trump administration.
This evidence leads to the inescapable conclusion that Trump engaged in constitutional insurrection. In particular, Trump unlawfully demanded that his vice president, Mike Pence, invalidate votes in the Electoral College for political opponent Joe Biden, a power he lacked.
While the riot was going on, Trump used Pence’s rejection of his demand to enrage the crowd and cause them to chant “Hang Mike Pence!”
Some will argue that the Supreme Court’s decision in the Colorado case, Trump v. Anderson, prevents Congress from rejecting electoral votes on the basis of 14th Amendment disqualification when it meets on January 6. This viewpoint lacks merit for three reasons.
First, the majority’s suggestion that new implementing federal legislation be passed in accordance with the 14th Amendment’s enforcement power is referred to as dicta by lawyers. Dicta are musings on an opinion that are not necessary to decide the case.
The conclusion that Section 3 is not self-executing may be an alternative conclusion, but speculation about the type of implementing statute required is simply dicta.
Dicta are not precedential. The four dissenters strongly objected to this section of the opinion as an overreach to decide a question that was not raised. This overreach is a power grab that Congress does not have to acknowledge.
Second, Congress is solely responsible for counting Electoral College votes, as stated in the Constitution. According to well-established law, the Supreme Court has no say in the matter because rejecting the vote on constitutionally specified grounds is a nonreviewable political question.
Third, specific legislation designed to address this situation already exists. The Electoral Count Act was originally enacted in 1887 and was later amended and restated in 2022. That statute establishes a detailed mechanism for resolving disputes over the validity of Electoral College votes.
The act specifies two grounds for objecting to an electoral vote: if a state’s electors were not lawfully certified, or if one or more electors’ votes were not “regularly given.”
A vote for a candidate disqualified by the Constitution is clearly in accordance with the normal use of the phrase “not regularly given.”
Disqualification for insurrection is the same as disqualification based on other constitutional requirements such as age, birth citizenship, and 14 years of residency in the United States.
To file an objection under the Count Act, a petition must be signed by 20% of each House’s members.
If the objection is upheld by a majority vote in each house, the vote is invalidated, and the number of votes required to be elected is reduced by the number of disqualified votes. If Trump’s votes were not counted, Kamala Harris would be elected president.
It is obvious that congressional Republicans are unlikely to do anything to elect Harris as president. However, Democrats must take a stand against Electoral College votes for someone who is constitutionally disqualified from holding office until this disability is removed.
Their oath requires them to support and defend the Constitution, and nothing less.
