constitution provide An insurrectionist who breaks his oath is not qualified to be president. This is the plain language of Section 3 of the Fourteenth Amendment. “No person shall hold any office under the United States or any State, whether civil or military, having previously sworn an oath to support the Constitution of the United States, and shall not engage in rebellion or sedition. This impediment may be removed by a two-thirds vote of each House.
Disqualification is based on rebellion against the Constitution, not the government. The evidence that Donald Trump was involved in such an insurrection is overwhelming. The issue was decided in three separate forums, two of which were fully contested with the active participation of Trump's lawyers.
The first fully contested case was against President Trump. Second impeachment trial. On January 13, 2021, then-President Trump was impeached on the charge of “incitement of insurrection.” In the Senate trial, seven Republicans joined all Democrats in securing a majority vote to convict him, but they fell short of the two-thirds vote needed to remove him from office. Incitement of insurrection includes “engaging in rebellion,'' which is a violation of the Constitution, or “giving aid and comfort to enemies of the Constitution,'' which is a disqualifying event provided for in Article 3.
The second contested case was Colorado's five-day judicial due process case. hearing Here, the court found that it “found by clear and convincing evidence that President Trump engaged in the insurrection, as the term is used in Section 3.” Colorado Supreme Court I said no. On further appeals to the United States Supreme Court, the Court: held They argued that states lacked the authority to disqualify candidates for federal office and that federal law was needed to enforce Article III. The court did not address the finding that Trump was involved in the insurrection.
lastly, bipartisan investigation Member of the House Select Committee investigating the January 6th attack on the U.S. Capitol. More than half of the witnesses who testified during the nine hearings were Republicans, including members of the Trump administration. The inescapable conclusion from this evidence is that Trump committed an unconstitutional insurrection. In particular, Trump illegally asked Vice President Mike Pence to throw away the Electoral College votes to political rival Joe Biden, which he did not have the authority to do. While the riots are underway, Trump took advantage of Pence's veto further enraging the crowd and making them Chant “Hang Mike Pence.”
Some may argue that the Supreme Court's decision in Colorado's Trump v. Anderson case: prevent Congress from rejecting electoral votes When convened on January 6th, based on the 14th Modified disqualification. This view lacks merit for three reasons
First, the majority's proposal requires that new federal laws be passed pursuant to the enforcement powers provided in the Fourteenth Amendment, as lawyers call them. dicta. Dicta is speculation of opinion that is not necessary to decide the case. The holding that Section 3 is not self-enforcing may be an alternative precedent, but the idea of what kind of enforcement law is needed is an obvious one. Dicta is not precedent-setting. The four dissenters vehemently objected to this part of the opinion as an overreach to decide a question that had not been posed. This overreach is a power grab, and there is no need for Congress to assess it.
Second, the counting of Electoral College votes is a matter uniquely assigned to Congress by the Constitution. under well-defined laws This fact deprives the Supreme Court of its say in the matter, since refusing to vote on constitutional grounds is a political question that cannot be revisited.
Thirdly, there are already specific laws designed for this situation. of Election counting method This law was first enacted in 1887 and subsequently amended and re-enacted in 2022. The law provides detailed mechanisms for resolving disputes regarding the validity of Electoral College votes.
The law provides two grounds for challenging electoral votes: if a state's electors are not legally certified, or if one or more electoral votes were not “duly” awarded. is stipulated. Voting for constitutionally disqualified candidates clearly follows the normal use of the term “out of regularity.” Disqualification for participating in an insurrection is no different than disqualification based on other constitutional requirements, such as age, citizenship at birth, or 14 years of residence in the United States.
A challenge under the counting law requires a petition signed by 20 percent of members in each chamber. If a majority of each chamber supports the opposition, the votes are not counted and the number of votes needed to win is reduced by the number of disqualified votes. If all votes for Trump are not counted, Kamala Harris will be elected president.
It is clear that Congressional Republicans are unlikely to take any action to elect Harris as president. But Democrats must object to the Electoral College voting for people who are disqualified from holding public office by the Constitution until that hurdle is removed. Their oath to support and defend the Constitution requires the same.
Evan Davis was editor-in-chief of the Columbia Law Review, and David Schulte was editor-in-chief of the Yale Law Journal. Both clerked for Justice Potter Stewart. Mr. Davis is a New York City attorney and former president of the New York City Bar Association, and Mr. Schulte is a Chicago investment banker.
