Section Three to the Rescue, by Mark Graber

Mark Graber is Regent Professor at the University of Maryland.

Section Three of the Fourteenth Amendment promises to resolve a dilemma confronting Americans wishing to prevent Donald Trump from doing any more constitutional damage, but hoping prevention will be done in ways that are deliberate and constitutional.  Impeachment and removal under Section Four of the Twenty-Five Amendment are politically infeasible and unwieldy.  The Senate is unlikely to convict Trump before his term of office ends.  Vice-President Michael Pence is unlikely to certify that Trump is unable to perform the duties of office.  Trump will have more than enough time to harm the public interest through the pardon and other powers before these mechanisms can be implemented.  Section Three escapes these difficulties.  Section Three can be invoked by legislation passed by Democratic majorities in the House and Senate and signed by President Biden after Trump no longer occupies the White House.  That legislation can retroactively void any action taken by President Trump after January 6, 2021.

Section Three of the Fourteenth Amendment declares ineligible for state or federal office any person who after taking “an oath” as a federal or state officer “to support the Constitution of the United States. . . engage[s] in insurrection or rebellion against the same.”  The language is mandatory.  The text declares “No person shall . . . hold any office.”  If Donald Trump on January 6, 2021 participated in an insurrection, then he immediately became an illegal occupant of the White House.  Trump has no more legal authority than he would have if evidence came to light that he was not born in the United States as is required by Article II of the Constitution.   

Section 3 differs from impeachment by making certain persons ineligible to hold public office.  A president who is impeached and convicted holds office legally until the process ends (though good arguments exist for thinking some functions may be suspended after the House votes to impeach).  A president who engages in insurrection becomes ineligible to hold public office from the moment the president participates in the insurrection.  This legal distinction has important consequences.  Before impeachment, Trump has the legal authority to sign legislation, pardon offenders and exercise other legal powers.  Trump has no such legal authority after he participates in an insurrection, even if Congress does not act immediately (or ever).  His actions are no more (or less) legal than the actions of other illegal officeholders, such as persons who held office under the Confederate Constitution.

The Republicans who framed Section Three of the Fourteenth Amendment placed the onus on Congress to implement that ban on office-holding.  “You must legislate,” Representative Thaddeus Stevens, the floor manager for the Fourteenth Amendment, declared.  Senator Jacob Howard of Michigan when introducing the Fourteenth Amendment to the Senate stated that Section Five “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.” No Republican member of the Thirty-Ninth Congress that considered the Fourteenth Amendment even intimated the federal courts could interfere with congressional efforts to implement Section’s Three’s ban on officeholding by past insurrectionists or otherwise become involved in determining who was legally entitled to hold office or in office.  Congress has the sole power to determine who is ineligible to hold public office, when those persons become ineligible, and the consequences of any action by a person illegally in office under Section Three.

This history of the Fourteenth Amendment demonstrates that after inauguration day Democrats in Congress could pass and President Joseph Biden could sign a law declaring that Domald Trump illegally retained the presidency after January 6, 2020, the day he participated in an insurrection against the United States.  An illegal president cannot take officials actions that become permanent binding law without subsequent ratification.  The Reconstruction Congress provides the appropriate standard.  Although the Confederacy established an illegal government, Congress did not void every action southern officials took during secession.  People married by a Confederate illegally holding public office remained married.  Congress for the same reason could decide to ratify laws signed by President Trump that allowed, say, the White House staff to be paid. Having determined that Trump was illegally in office, however, Congress has the power under Section Three of the Fourteenth Amendment to determine which of Trump’s actions after January 6, 2021 should retain legal significance.  If the present congressional majority and President Biden believe a Trump pardon, including a Trump self-pardon, or any other action Trump took was not in the public interest, Congress could declare that pardons and those actions void.

The Section Three path has several advantages.  That approach to neutering Trump’s activities in his last weeks in office is politically feasible.  The Republican Senate will not impeach Trump, but Democratic majorities might pass legislation under Section Three declaring Trump illegally in office after January 6.  Vice-President Pence will not declare Trump unable to fulfill the duties of office, but President Biden might sign such legislation voiding all Trump decisions over the next two weeks that are not in the public interest.  As important, no rush exists to pass Section Three legislation.  Impeachment and removal must be done immediately if they are to be effective.  Given that congressional power under Section Three of the Fourteenth Amendment to declare past Trump actions void need not be exercised immediately and Trump can do not more official damage when out of office, Representatives and Senators can engage in the deliberations necessary to determine crucial issues accurately and fairly.  If they do conclude Trump participated in an insurrection on January 6, the actions Trump took after illegally remaining in the White House harmed the national interest, the Constitution permits Congress to strip those actions of any future legal significance. 

19 thoughts on “Section Three to the Rescue, by Mark Graber

  1. 1) Through the insurrection clause, bar someone from future office. Ok, that seems legit and well grounded.

    2) Through the insurrection, retroactively declare the President was not legitimately in office as of 1/6 and thus any actions taken afterward were void…

    This seems like an enormous leap in logic. The confederacy example doesn’t seem analogous. I guess with the confederate states you might decide that they were carrying out some legitimate, normal state activities as with marriage (things that would have been sanctioned anyway), and you would distinguish from the insurrectionist action against the union. I don’t know enough about what actions were deemed legitimate and what weren’t, but it seems like that work was beyond 14.3 (e.g. war debt in 14.4, more broadly determining the status of the rebelling states, e.g. arguments in Texas v. White).

    “having determined he [Trump] was illegally in office” –> you need to first declare him illegally in office and remove him. If he wasn’t removed at the time or even declared to be in office illegally (signed off by Senate and, absurdly, the President), it seems dubious to make this a retroactive action by a later Congress. (It also seems open to abuse if it actually were recognized.)

    Overall, this seems like a highly suspect way to get around the important and necessary work of impeaching and barring Trump from future office. Retroactive impeachment makes sense to me, deeming someone unfit for office, but if the actions weren’t stopped at the time, I don’t think a majority vote should suffice to void all previous action. (But by all means challenge specific actions as being impermissible such as self-pardons.) I’m curious what other people think of this retroactive claim re: 14.3.

    1. Agree with Anonymous.

      To say Trump led an insurrection is specious at best, but to insinuate or suggest retroactivity borders on revolution. What is stopping a Democrat controlled Congress in 2021 from determining Reagan was illegally involved in X or George W. Bush illegally went to war and thus negating any subsequent law, statute, or Executive Order that has resulted since?

      Who is leading an insurrection now?

      1. Hmmm I think Pelosi, and several others in Congress may be in trouble for this exact reason. Interesting -we shall see. Also evidence in a tribunal is much different than our corrupt courts. Like a stolen laptop. 😉

  2. I take it as a given there is a good faith basis for Professor Graber’s analysis that easily stands up to any legal challenge, i.e., a Court might conclude the analysis is wrong, but the case will be heard and adjudicated on the merits, if Trump is neither impeached nor removed and this is the only avenue to reverse some of the harmful steps he takes then it seems to me it is worth taking same. At that point someone with standing (for instance, I would think, the beneficiary of a “reversed” pardon) can challenge the efficacy of the action and the Courts can decide if Professor Graber’s logic carries the day.

  3. This is called a bill of attainder and it is specifically forbidden by the Constitution. You have to do the hard work of impeachment, not just attaint someone by majority vote.

  4. The nugget is retroactive application of the disqualification, nullifying all acts taken after January 6. I think the Indictment under 18 U.S.C. Section 2384 writes itself, a final decision on guilt resting in a jury. I would prefer that decision be left to a court of law rather than politicians. Since Trump seems set on a self pardon, an Indictment is assured in order to have a case or controversy before the Supreme Court to determine the validity of self pardon. It’s important to have a shotgun approach, providing the courts with several grounds to affirm guilt. If a jury were to acquit, a Section 3 decision would be an avenue to the Supreme Court, albeit a more problematic one. The standing would arise from parties affected by post Insurrection acts. I can see a court holding that the decision of a jury preempts that of Congress.

  5. Professor Graber’s views seem to be historically correct through the lens of the Confederacy and Reconstruction. The question is how does it apply in modern times to Trump’s actions in 2020. Those who suggest that the application of Section 3 of the 14th Amendment violates the constitution make no sense. It is an AMENDMENT to the constitution that allows it to violate prior provisions of the Constitution including the Bill of Attainder provision. Further, if congress did pass legislation to bar Trump’s future holding of federal office under the 14th Amendment, Trump would have the right to DUE PROCESS in the courts (that McConnell and he packed with Federalists).
    Since Trump did not pardon himself, there is no argument about his being protected from Section 3. The few cases on Section 3 suggest that a pardon after Section 3 was adopted do not absolve one from its effect. Further, since Section 3 preexisted Trump’s actions, there is nothing ex post facto about it. All congress would be doing if it made a resolution would be to congressionally finding Trump is barred by his own actions involving his violation of his oath of office to uphold the Constitution.

  6. Look for “Disqualify Trump, Inc.” a not for profit corporation, advocating State Attorneys General joining in one or more Declaratory Judgment Actions in Federal Court (Civil not Criminal) seeking a Declaratory Judgment that Donald J. Trump is ineligible to “hold any office” under the United States or any State, pursuant to the 3rd Clause of the 14th Amendment, and further advocating that the Attorney General of the United States and no member of Congress be a Plaintiff in a Declaratory Judgment Action pursued by a State Attorney General. When the support of respected constitutional law scholars on this course of action to Disqualify Trump has been secured, Disqualify Trump, Inc. will go public and seek public support.

    1. Congress does not need to pass any law, pursuant to Section 5 of the 14th Amendment or any other form of authorization, for a “person” with “standing” to use a Federal Declaratory Judgment Action to declare Trump ineligible to hold any Office under the U.S. Constitution, pursuant to Section 3 of the 14th Amendment. Legal scholars are working on every possible angle of this type of action. The principal is simple and straightforward but the details are numerous and complicated. Nothing Congress or the current president might say or do will accomplish the end result of disqualifying Trump. Only a Court (and ultimately the U.S. Supreme Court) can hold Donald Trump ineligible to hold any Office under the U.S. Constitution, pursuant to Section 3 of the 14th Amendment.

      My personal view is that if another Presidential Election match up between Biden and Trump were held today Biden would win by a wider margin against Trump than on November 3, 2020. But who knows what domestic and world events will affect U.S. politics between now and election day 2024. We must take a stand and this type of action against Donald Trump because he does not understand or respect the Constitution and the rule of law. Most of us agree or disagree with the words, policies and actions of one or more of the Presidents during our lifetimes. That’s to be expected and that’s politics. What Trump has done and what he represents is an affront to our Constitution and the rule of law.

      When we go public with Disqualify Trump, Inc. read the summaries or the entire briefs on each of the legal issues on our website. One of the most interesting briefs is entitled “Free Speech: The Proposed Brandenburg Corollary.”

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