The 14th Amendment’s Disqualification Provision and the Events of Jan. 6

Read the original article: The 14th Amendment’s Disqualification Provision and the Events of Jan. 6


Before the violence at the Capitol, Section 3 of the 14th Amendment was one of the most obscure parts of the Constitution. Ratified shortly after the Civil War, Section 3 was designed to prevent current and former U.S. military officers, federal officers and state officials who served the Confederacy from serving again in public office unless their disability was removed by at least a two-thirds vote of each house of Congress. Section 3 was enforced for a few years at the federal and state levels, but in 1872 the necessary supermajorities in Congress granted an amnesty to most of the men who were barred from office. 

Now Section 3 is back in the news because of its declaration that officials who swore an oath to defend the Constitution and then “shall have engaged in insurrection or rebellion against” the United States are ineligible to serve in office again. This raises the significant question of whether President Trump and other individuals who played some part in the events surrounding the Jan. 6 attack on the Capitol are now ineligible from future service. A review of the basic parameters of Section 3 suggests it is the best legal framework available for addressing the extraordinary events at the Capitol with respect to the eligibility of participants to hold public office.

The Key Questions

The first question under Section 3 is who decides whether someone is ineligible. The answer is that a court must determine if someone outside of Congress is subject to the disability. This point was established in cases between 1868 and 1872, in which men who were accused of being ineligible contested that claim in court with full due process of law. In this respect, Section 3 is different from a disqualification from federal office imposed as a sentence for an impeachment conviction. A disqualification sentence from the Senate is final and not, for all intents and purposes, subject to judicial review. 

By contrast, Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny and would subvert long-established constitutional principles, such as life tenure for federal judges and the limits of the impeachment process. At most, Congress can exercise its Section 5 enforcement authority under the 14th Amendment to express its considered opinion that certain individuals are ineligible, with the expectation that the courts will accept that opinion under the “congruence and proportionality” standard articulated by the Supreme Court’s decision in City of Boerne v. Flores—assuming that City of Boerne even applies to the enforcement of Section 3.

With respect to sitting members of Congress, Section 3 must be enforced internally, because the Constitution contemplates no other disciplinary process. The most obvious enforcement mechanism is expulsion, which can be done for virtually any reason with a two-thirds vote. During Reconstruction and on one occasion during World War I, Congress enforced Section 3 by refusing to seat members-elect who were deemed ineligible. In Reconstruction, the issue was that these members-elect were involved with the Confederacy. During World War I, the member-elect was convicted under the Espionage Act—a conviction that was later reversed on appeal. 

Whether Congress can by a majority vote exclude a sitting member on Section 3 grounds is doubtful. The issue turns on whether Section 3 is viewed as an eligibility requirement (comparable to age or citizenship) or as a punishment. Under the Supreme Court’s decision in Powell v. McCormack, eligibility requirements permit exclusion by a majority vote, while all other grounds must be addressed through expulsion and a two-thirds vote. The Supreme Court expressly declined in Powell to decide which of these categories applied to Section 3. On balance, I believe that the Court would hold that Section 3 may be enforced against a sitting member of Congress only through expulsion, largely because the two-thirds requirement for expulsion is an important safeguard against partisan abuses.

Second, there is the question of whether Section 3 is self-enforcing. The answer is probably not. In 1869, Chief Justice Salmon P. Chase issued a circuit opinion holding it was not. This opinion was not well reasoned, as I explain in my paper on Section 3, and might not be followed by the current Supreme Court. But, then again, the court might come to the same conclusion today. 

Congress enacted Section 3 enforcement legislation in 1870 that authorized the Department of Justice to bring quo warranto actions—a common-law writ asking, “by what warrant” does someone lawfully hold office—to oust from office some ineligible officials. But Congress repealed this statute in the 1940s as part of a broad cleanup of “obsolete” provisions. If Chase was right, then Congress would be well advised to enact new Section 3 enforcement legislation. The quo warranto provision of the 1870 Ku Klux Klan Act could be reinstated with some adjustments. For example, the act authorized actions against ineligible officials, not ineligible candidates. There are instances, though, where enforcement should be authorized before elections are held so as to resolve ex ante any uncertainty about whether someone can serve.

Third, a presidential pardon cannot cure Section 3 ineligibility. This conclusion rests on the text of the amendment, which permits only a supermajority in both houses of Congress to grant an exemption, and on the original public meaning of Section 3. During the debate on the 14th Amendment in the 39th Congress, the Senate rejected a proposed amendment to Section 3 that would have made an exception for presidential pardons. This rejection was made against the backdrop of Congress’s bitter fight with President Andrew Johnson over Reconstruction, which supports the argument that Congress intended to make Section 3 an exception to the president’s pardon power. In the 1880s, the attorney general issued an opinion stating that pardons Johnson gave to individuals before the 14th Amendment was ratified did cure their Section 3 ineligibility, but the implication was that subsequent pardons did not. 

So what does it mean to be “engaged in insurrection or rebellion” under the language of Section 3? There are some clues about what “engaged” means. When Congress addressed claims that members-elect were ineligible under Section 3, the facts in each case were examined carefully. In some instances, the member-elect was excluded and in others he was not. Extracting a general principle from these few examples, though. is difficult. Another insight comes from the only reported criminal case on Section 3, in which a jury was instructed that a “voluntary” act was required to engage in insurrection. 

The harder question is what constitutes an “insurrection,” a point on which I have thus far been unable to find any particularly helpful authority. During the 1860s and 1870s, everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like. The Insurrection Act, passed in the wake of Aaron Burr’s alleged conspiracy in 1807, was on the books when Section 3 was ratified. But the Burr trial was about treason, not insurrection, and thus supplies no useful guidance.

Section 3

[…]


Read the original article: The 14th Amendment’s Disqualification Provision and the Events of Jan. 6

Liked it? Take a second to support IT Security News on Patreon!
Become a patron at Patreon!