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.