A Constitutional Crisis of Confidence

Why so much emphasis on disqualifying Trump rather than defeating him?

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Former U.S. President Donald Trump arrives to depart at Atlanta Hartsfield-Jackson International Airport after being booked at the Fulton County Jail on August 24, 2023, in Atlanta, Georgia. (Photo by Joe Raedle/Getty Images)

The 14th Amendment to the Constitution says that “No person … having previously taken an oath … to support the Constitution of the United States, [having] engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” is permitted to “hold any office, civil or military, under the United States.”

You may already be familiar with the language of this Reconstruction-era amendment  because of the growing movement to use that language to try to keep former President Donald Trump off the ballot next year, or, if that fails, to seek to have the Supreme Court bar him from taking office.

Legal scholars left and right have cropped up to say that not only does the amendment pertain to Trump for his efforts to subvert the constitutionally prescribed transfer of power in 2021, but that the language is “self-enforcing,” by which they mean that no additional legislation is needed to find Trump ineligible. A secretary of state could simply decree that the former president does not qualify—the same as if he was not 35 years old or a natural-born citizen—and deny his application.

But in the practical sense, the amendment is not self-enforcing at all. People—elections officials, lawyers, plaintiffs, judges—would have to do the enforcing. 

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  1. Avatar photo
    Honest Ape

    Let's imagine Kyrsten Sinema mounting an independent run for president against Trump and Biden. If she was to win such a three-way race - a distinct possibility, in my opinion - she would become a national hero, ridding us of both Trump and Biden and reordering our dysfunctional politics as we know it.

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  2. Lee Rone

    I recently watched Babylon Berlin which is set in 1929 Berlin. Knowing what was ahead for Germany, I found myself wishing (obviously) that someone would have stopped the rise of Hitler while they had the opportunity.

    In our current situation, we face the reality that if Trump is elected, he may place loyalists in charge of the military and declare himself dictator. Given that reality, it seems to me that we need to embrace Judge Luddig's plan now while we have the opportunity.

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    1. Dlwondercheck

      I think that's a little far-fetched. For the reason that, regardless of what Trump declares himself to be, I don't believe for a single moment that the military en masse would go along with his scheme. Even if he placed "loyalists in charge of the military" (how would that work, exactly?), they're not robots that can be re-programmed at will. They are all trained and I believe required by the Military Code of Justice to refuse illegal orders. I just don't see that happening.

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      1. Lee Rone

        I agree that it seems far-fetched to me also. But I would have thought it was far-fetched that the president would openly attempt to persuade state legislatures, Trump-appointed judges, the Congress, and the Vice President to simply hand him the election, effectively making him dictator.

        It's not unlike how Hitler came to power. Otherwise normal politicians and generals allied with Hitler, in order to gain power for themselves and thinking they could control him. Hitler fixed that by setting the Reichstag on fire, pretending that a communist revolution had begun and assuming autocratic powers. The rest is history as we all know, and there is no reason to think America is immune to such treachery.

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  3. PatThomson

    You're worried that the Trump-forever die-hards will throw the election to Biden.

    You might be right. But in my neighborhood, one of the most die-hard Trumpists has taken down all his (several) Trump flags. If he can change his mind, so can the others.

    Despair not!

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  4. Christine Parker

    "In New Hampshire, for example, there is a serious effort afoot from the right to disqualify Trump from the ballot for the first-in-the-nation primary."

    That's not possible. I have been promised - indeed, I have been reassured by this very article - that Trump's nomination is effectively inevitable and that the GOP is locked into the choice. Yet now I am supposed to believe some people on the right are trying to have Trump removed from the ballot? Inconceivable.

    Or - I don't know, just spitballing here - we don't need to be so terribly glum. If people within the GOP are openly opposing Trump (there was also a compelling debate recently), that suggests he is not inevitable.

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    1. R. James

      Sununu and his Secretary of State will likely be open to opposing Trump's nomination and they will be the ones making the decision on whether his name makes the ballot.

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    Bill B

    The answer may lie in this conversation between Charlie Sykes and Mike Murphy. I'd urge the handful of Democrats among us to read "The Biden Problem".

    https://morningshots.thebulwark.com/p/the-problems-with-joe-biden?

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  6. Drussell2337

    Let the man run - he'll lose again and we'll be one step closer to purging him from the political scene. If the 14th Amendment is used, it will be seen by his base as an attempt to prevent them from voting. This will give new energy to his political life, and is sure to create massive infighting among Americans. Dems may be hoping for this outcome, as it ensures they have a winning election cycle or two, but it's short sighted and not in the best interests of the country.
    I understand that there is an argument regarding use of the 14th Amendment and I understand that Trump's conduct was destructive. If the Dems had only pristine, scandal free candidates for the last couple of cycles, they'd be in a stronger moral/ethical position to argue for this move - but, alas, they are also scandal ridden and obviously benefitting from a biased press and corrupt exec agencies. Trump's behavior doesn't give the Dems a pass for this behavior, and voters are sick of this from their side too - in fact, it generates sympathy for Trump from fair minded people who might support Trump solely for that reason when they otherwise may not have.
    Using the 14th Amendment will guarantee more conflict and divisiveness for years to come - and will give new life to the Trump movement. Let the man run - he won't win and we'll have succeeded in diminishing his influence a great deal.

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  7. Steve Hinchey

    It's a situation we never really expected. As so many in both parties opine at how much Biden has declined mentally, and physically, his potential opponent has an insurmountable amount of baggage based on real life actions and statements. While Trump faces multiple indictments, and a Court schedule that would make most break down, we have an incumbent that can't speak clearly, falls down a lot, and even sleeps during public appearances.

    Most of the time, I tend to agree with Trump's policies here and there, and virtually none of Biden's. But Trump's policies are not on trial, his actions and statements are. Whether he actually gets convicted is not factored into my thinking, we all know what he has done. I also wait to see what Biden's done, and I think the GOP has finally done a great job of investigating that side. I've long thought the biggest case against Trump in court was in Georgia. But I have nothing but contempt for Trump the man, think Biden should resign to do his senility, and hope like heck Democrats nominate Harris if that happens.

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      Trevor Reid

      I don’t understand? You want Harris to be nominated if Biden resigns? Why? She may be one of the only Democrats who could lose to Trump. She seems to be totally unprepared for the job (still) and has a soft work ethic as demonstrated by some of her weird word salad speeches. She is also reportedly hard to work with which would make it difficult for her to keep good advisors.

      It would be best if the Republicans nominated someone other than Trump or Ramaswamy, but in the absence of that fantasy, I would prefer the Democrats nominate an attractive serious and substantive candidate who would be good for the country (even if I disagree with him/her on many policy positions) and be able to trounce Trump. (The obvious question - which I cannot answer - is who exactly would fit that bill.)

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    Bill Dyer (aka Beldar)

    I have been thinking tonight in a conscious effort to remember how I felt in November-December 2000.

    Specifically, between Election Day 2000 — Tuesday, November 7, 2000 — and the day the SCOTUS shut down the Florida recount efforts and effectively ended Al Gore's efforts to contest the 2000 presidential election, on Tuesday, December 12, 2000.

    Just over a month.

    When I look back over the timeline (here's a good one: https://guides.law.stanford.edu/c.php?g=991108&p=7170216), I remember starting with a sense of near certainty that the courts, especially the federal courts, and especially the SCOTUS, would, as a matter of reflexive institutional (not political) conservatism, shun a deciding role.

    And boy was I wrong.

    As for all y'all saying this Section 3 stuff is all crazy:

    I recommend crow etouffee, heavily seasoned with Cajun spices. Spring for the grilled scallops on top.

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    1. Christine Parker

      As soon as the Gore team brought a lawsuit (yes, the Gore campaign was the first to bring it to the courts), it was headed for SCOTUS. It was titled "Bush v. Gore" because the Bush team was appealing a previous ruling. Gore sought to stop the certification of an election he believed he had actually won.

      The Justices didn't offer their services to proactively jump in there, but if an appeal about a national election goes to SCOTUS, they kinda have to take it.

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  9. Avatar photo
    Soniak21

    In a roundabout way, you're conflating judgment of Trump's misconduct with judgment of his political future.

    Don't get me wrong; lots of folks are worse. I'm talking about the Lindsey Graham crowd that thinks Trump shouldn't be tried on criminal charges in a criminal courtroom because "we should let the voters judge him." This is patently absurd. Voters decide if he should get to lead to the free world again—when the question at hand is whether he should go to prison.

    Your argument isn't THAT wrong, but it still conflates two things. Elections are about deciding between two candidates who are both, at least technically, eligible for the office. The 14th Amendment issue is partly about deciding a different question: Should there be consequences for flagrantly abusing the power of the presidency the first time... like, say, not being not being eligible to seek that power again?

    Now... I have trouble with the 14th Amendment argument against Trump. Banning him on the basis on insurrectionary actions—when he's never been tried and convicted for insurrectionary actions—seems dangerously ill-defined. When it comes to something as serious as the presidency and the Constitution, "we all saw it with our own eyes" may not cut it (even if we did all see it with their own eyes).

    Still, I think you've missed the point. When you say "Why not just let him be judged by the voters and (probably) lose?" you're not even engaging with the real question. Lots of perfectly eligible candidates have lost the presidency—Al Gore and Mitt Romney, for example. Their loss wasn't a punishment or condemnation: Voters just preferred the other guy. And this is a different question from "Whom do you prefer for president?" The question posed here is: "Should someone who once tried to overturn the Constitutional order even be eligible for the job?"

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  10. Avatar photo
    Larry

    About Cleveland in 1896 and Nixon in 1968, both years, there was a 3rd party candidate who won a non-trivial number of electoral votes. That's not going to happen this time. But maybe everything is suis generis these days.

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