Invalidating Trump’s presidency through a distorted interpretation of the 14th Amendment lacks legal merit.

Is Trump Constitutionally Disqualified from Serving as President?

Despite four ‍indictments and two ⁤previous‍ impeachments, Donald Trump remains a strong contender in the Republican primaries⁣ and ⁣is even running equal with President Biden in some polls. However, a​ theory defended by legal scholars suggests that Trump⁤ may be constitutionally disqualified from holding ​federal office.

According⁤ to Professors Michael Paulsen and ​Will Baude, the 14th Amendment to the Constitution⁣ would disqualify Trump from serving as president, even if he secures enough ​electoral votes to win the presidency. ⁢This theory has been seconded by former Judge Michael Luttig and Professor Laurence Tribe. While their interpretation of the Constitution’s insurrection clause ​seems correct,⁢ they‍ are mistaken ⁢in believing that​ anyone has ⁣the⁢ right to strike Trump from the ballot.

The 14th Amendment, ratified in 1868, deals with the treatment of⁣ former officials who engaged in insurrection ​or⁤ rebellion against the United‍ States. Although it was originally intended for Confederates, ‍its text has continuing relevance to any future insurrection or rebellion.⁣ This‌ includes the⁤ presidency, as other constitutional‍ texts referring to ⁤”officers”⁢ support this interpretation.

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.

The distinction⁤ between “rebellion” and “insurrection” is important. In the⁤ Prize Cases (1863), the Supreme Court defined insurrection as ‍political violence at⁤ a level lower or less ​organized than an organized rebellion.⁢ While ‍some argue⁤ that Trump was​ an “insurrectionist,” there is no ⁣unanimous agreement among ⁣the‌ American people. A CBS poll showed that⁣ almost‍ half ​of‍ the respondents ​rejected the claim ​that the events of January ⁣6 ⁣were⁣ an​ actual insurrection.

Furthermore, the failure of​ the‌ Justice Department to charge Trump‍ with insurrection and the Senate’s acquittal in the second impeachment raise doubts‍ about the academic ‍theory of⁣ disqualification.⁢ It is unfair to require Trump to prove his innocence without any definitive finding by⁤ a federal authority.

The Electoral College Chooses Presidents, Not ​State ⁢Officials

If the academic view were correct, it would create chaos in our‌ electoral system. The⁢ Electoral College system decentralizes the ⁢selection of the president,⁣ with state legislatures deciding‌ the manner for choosing electors. ⁣Allowing state officials to ⁢unilaterally find ‍insurrection​ and eliminate candidates for federal office goes against the principles​ of federalism and could potentially sway the outcome of a close race.

Chief Justice John ⁢Marshall’s observation in McCullough v. Maryland that “the power to tax is the​ power to destroy” applies here. Allowing single state officials to decide the eligibility of candidates​ undermines the uniformity and national character that the⁤ framers sought to ensure.

Congress Has⁤ Other Means of Enforcement

Section⁣ 3 of the 14th Amendment provides means of enforcement, but it does not grant every official the power to ‌enforce it.⁤ Each ⁣branch of⁤ the federal government can honor Section 3⁣ in the ⁤course of executing its constitutional functions. Congress could pass a statute disqualifying insurrectionists from⁣ office or establish a ⁢specialized tribunal for handling ⁣insurrection cases. Ultimately, federal⁣ courts will‌ have the final⁤ say.

While holding Trump accountable for his actions is important, it ⁢should not depend on warping our constitutional system. Prosecutors should⁣ charge him with insurrection if​ they can prove it, and Congress should ‍disqualify him if they agree he committed the crime. Ultimately, the American people will ⁤decide Trump’s responsibility for the events⁤ of January‍ 6 at the ballot box in⁤ the‌ 2024 elections.