Monday, November 21, 2022
The Disqualification Clause Clause: What is it? How does it work?
Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.
First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,
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 be a vote of two-thirds of each House, remove such disability.
Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.
For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.
For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose or obstruct the execution of the laws of the United States or impede the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.
As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.
It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.
But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.
Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.
CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.
For more, here's a Congressional Research Service Legal Sidebar on the Clause.