Trump and the 14th Amendment

You’d have to be consciously avoiding the news not to be aware of the discussions about how former president Donald Trump could be ineligible to become president again because of Section 3 of the 14th Amendment to the United States Constitution, which says:

Section 3.
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.

14th Amendment – US Constitution

Let’s put aside the substantive question of whether Donald Trump did indeed take an oath under these circumstances, and whether he actually engaged in insurrection or gave aid and comfort to enemies. Rather I want to look at the mechanics of how such a determination might be made.

Legal experts are saying that the section is “self executing” just as the constitutional requirement for natural born citizenship, age and residence is self executing. They argue that no conviction of the crime of insurrection is required and that a state authority charged with determining who is on the ballot can simply make the decision.

Over 212 lawsuits were filed in attempt to prevent Barack Obama from becoming president because, the suits alleged, Obama lacked the natural born citizen requirement. The result of that effort is instructional because only one judicial decision made by an administrative law judge in Georgia found Obama eligible, and all the rest were dismissed or it was determined that no state official was required to make a decision. State secretaries of state have said that the decision is left to the political parties who put forward candidates, or dodged the question in other ways.

The first lawsuit challenging Trump lawsuit was rejected by a Florida court for lack of standing (that means the person bringing the lawsuit didn’t qualify as someone who could sue). The second was in Colorado where state law explicitly allows voters to bring a lawsuit. It might survive and be heard, and perhaps the validity of the process tackled by the U. S. Supreme Court. It’s a messy approach, because each states’ laws are different, and state secretaries of state are political people. Fifty cases, plus appeals, is rough. Nevertheless, this is what the pundits are concluding is the avenue to resolution. I think it will be a mess.

I think there is another way. Those talking about resolution by the courts fail to consider another amendment to the U. S. Constitution, the 20th, that says in Section 3:

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

20th Amendment – US Constitution

That is, the Congress is explicitly directed by the Constitution to consider qualification when declaring the next president.