Progressive Organizations Aim to Invoke Constitution’s Insurrection Clause to Exclude Trump from 2024 Elections

by Andrew Wright
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14th Amendment's insurrection clause

As the presence of former President Donald Trump looms large over the Republican presidential primaries, a segment of progressive organizations and legal authorities are arguing that an infrequently cited provision of the U.S. Constitution disqualifies him from seeking office again, owing to his involvement in the January 6, 2021, assault on the Capitol.

The 14th Amendment explicitly prohibits individuals from holding office if they have previously sworn an oath to defend the Constitution and then participated in an “insurrection or rebellion” against it. An increasing cadre of legal experts contend that this post-Civil War stipulation is applicable to Trump, based on his actions aimed at subverting the 2020 presidential election and inciting supporters to breach the U.S. Capitol.

Two progressive non-profit organizations have committed to initiating legal challenges if state election officials include Trump on the electoral ballot, ignoring these reservations.

This endeavor is anticipated to set off a cascade of litigations and appellate procedures across multiple states, potentially culminating in a U.S. Supreme Court ruling, perhaps coinciding with the 2024 primary season. This introduces an additional layer of potential legal disarray to a nomination process already complicated by the front-runner’s engagement in four separate criminal trials.

As the Republican Party prepares to initiate its nomination process, starting with the Iowa caucuses scheduled for January 15, Trump’s eligibility to participate is increasingly coming under legal scrutiny.

Gerard Magliocca, a professor of law at Indiana University, cautioned that these legal cases could be ongoing during the primaries, potentially yielding divergent rulings in different states until a conclusive decision is rendered by the Supreme Court.

Although most lawsuits are expected to be filed around October, when states finalize their primary ballots, the issue has gained traction from a newly published law review article by renowned conservative legal scholars William Baude and Michael Paulsen. Their conclusion argues for Trump’s disqualification based on Section Three of the 14th Amendment.

This particular section disqualifies any individual from roles in Congress, the military, and federal and state offices if they have ever sworn an oath to uphold the Constitution and subsequently participated in “insurrection or rebellion” against it or supported its enemies.

Last week’s Republican presidential debate in Milwaukee featured former Arkansas Governor Asa Hutchinson highlighting that Trump could potentially be disqualified according to the Constitution and the rules governing elections.

In 2021, the non-profit organization Free Speech For People submitted letters to chief electoral officials in all 50 states, requesting the disqualification of Trump should he choose to run again. Legal Director Ron Fein pointed out that this matter is now starting to gain official attention after a prolonged period of inertia.

During the run-up to the 2022 midterm elections, the same group pursued legal action to remove U.S. Representatives Marjorie Taylor-Greene and Madison Cawthorn from the ballot for their support of the January 6 incident. While Greene’s case was dismissed in her favor, Cawthorn’s became irrelevant after he lost his primary race.

However, Secretary of State Adrian Fontes of Arizona, a Democrat, stated that his ability to act was constrained by a state Supreme Court ruling which posited that only Congress has the authority to disqualify candidates from Arizona’s presidential ballot.

On the other hand, Michigan Secretary of State Jocelyn Benson, also a Democrat, said that the legal arguments for Trump’s disqualification are valid and under discussion among various state secretaries, including those from battleground states.

In a statement, Brad Raffensperger, the Republican Secretary of State of Georgia, emphasized that voters should ultimately be the deciding authority.

The question of invoking the 14th Amendment to disqualify Trump could have significant legal implications and sets a precarious political precedent, warned Michael McConnell, a conservative law professor at Stanford University.

Enacted in 1868, the 14th Amendment was instrumental in securing civil rights for freed slaves and eventually all U.S. citizens. It was also intended to prevent former Confederate officials from regaining power.

If Trump is barred from running in any state, a legal challenge leading up to the U.S. Supreme Court is almost certain. If no state takes such action, non-profits like Free Speech For People and Citizens for Responsibility and Ethics in Washington are expected to challenge his candidacy.

Edward Foley, a law professor at The Ohio State University, emphasized the necessity for the Supreme Court to definitively resolve this issue prior to the general election to prevent a potential democratic crisis in 2025.

Advocates for invoking the 14th Amendment argue that the clause is not punitive but rather a constitutional requirement for office, akin to the age and citizenship requirements for presidential candidates.

Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, summarized the sentiment succinctly: “The criteria for office not only require a candidate to be of a certain age and a natural-born citizen but also to have refrained from orchestrating an uprising against the government.”

Frequently Asked Questions (FAQs) about 14th Amendment’s insurrection clause

What is the 14th Amendment’s insurrection clause?

The insurrection clause is part of Section 3 of the 14th Amendment to the United States Constitution. It prohibits anyone who has taken an oath to support the Constitution and later engages in insurrection or rebellion against it, or gives aid and comfort to its enemies, from holding federal or state office.

Who are arguing for the application of this clause against Donald Trump?

Legal experts, along with liberal groups and non-profit organizations, are contending that the insurrection clause should apply to former President Donald Trump due to his role in the events surrounding the January 6, 2021, attack on the U.S. Capitol.

What legal actions are being taken to enforce this clause?

Two liberal non-profit organizations have pledged to challenge in court should election officials in any state place Trump on the ballot for the 2024 presidential elections. These challenges are likely to set off a cascade of lawsuits and appeals, potentially culminating in a U.S. Supreme Court decision.

How does this impact the 2024 Republican presidential primary?

The legal challenges could introduce significant uncertainty into the Republican primary process. Different states may reach different conclusions on Trump’s eligibility, leading to a complex and potentially chaotic nomination process.

What is the role of the U.S. Supreme Court in this matter?

If lawsuits related to this issue proliferate across multiple states, it is highly probable that the matter would eventually reach the U.S. Supreme Court for a definitive ruling, particularly if the question remains unresolved during the 2024 primary season.

Have any prominent conservative scholars supported the application of the insurrection clause against Trump?

Yes, conservative law professors William Baude and Michael Paulsen have written a law review article, scheduled for publication in the University of Pennsylvania Law Review, in which they argue that the insurrection clause should be applied to bar Trump from future office.

Could the insurrection clause create a political precedent?

There is concern among some legal scholars, including conservative law professor Michael McConnell, that applying the insurrection clause in this manner could set a precedent. This might lead to similar legal challenges against other political figures who express support for unlawful activities.

What could happen if Trump wins the election but is then disqualified?

Edward Foley, a law professor at The Ohio State University, has expressed concern that if the issue of Trump’s eligibility is not settled before the general election and he wins, it could trigger another democratic crisis if Democrats attempt to block his ascension to the White House on constitutional grounds.

More about 14th Amendment’s insurrection clause

  • 14th Amendment to the U.S. Constitution
  • Legal Analysis of the Insurrection Clause
  • Overview of 2024 Presidential Elections
  • U.S. Supreme Court Rulings on Constitutional Eligibility
  • Historical Usage of the 14th Amendment’s Insurrection Clause
  • Conservative Legal Scholars on the Insurrection Clause
  • Potential Impacts on the 2024 Republican Presidential Primary

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