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Sunday, January 10, 2021

A Stroll Through Section Three of the Fourteenth Amendment As Applied to the President

Here is the language of Section Three of the Fourteenth Amendment:

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.

Let's ask some questions about this language given current events:

  1. Is the Presidency an "office . . . under the United States?" and is the President "an officer of the United States?" The answer, I think, is yes to both, though it's a contestable point. (My draft paper discusses this issue briefly, but now I'll have to go back and revise.)
  2. If the President incited an insurrection, is that the same as having "engaged in insurrection" against the United States? This is a harder question that would require more thought about what insurrection meant in 1868, among other things. (Such as did he, in fact, incite an insurrection and was what occurred at the Capitol an insurrection?) 
  3. Is Section Three self-executing? Arguably not. Chief Justice Chase held on circuit in 1869 that Section Three is not self-executing. My draft paper criticizes his opinion, though, and I thought (before this week) that Section Three is self-executing.

If you answer any one of these three questions "No," then Section Three does not apply to the President action's on Wednesday. But if you answer all three of these questions "Yes," then you can reach this shocking conclusion: Donald Trump ceased to be President on January 6th. He is constitutionally ineligible to serve. 

I point this out because some litigant will probably argue that presidential actions taken after January 6th are invalid unless they are confirmed by the Biden Administration. Courts, therefore, may have to address this issue. (This could be particularly true for any last-minute pardons issued by the (ex?)President.) Likewise, if the (ex-?)President seeks to run again, courts will have to address the issue. Section Three claims are justiciable, as courts did address those claims in the 1860s and 1870s.


Posted by Gerard Magliocca on January 10, 2021 at 08:28 AM | Permalink


To basically correct a common citation, see here:


Posted by: Joe | Jan 22, 2021 1:59:09 PM

OK, Isn't the way to litigate this issue for a US Attorney to continue to prosecute some of the people that Trump pardoned after he ceased to be president by the self-executing amendment? Under familiar due process jurisprudence Trump would be entitled to challenge whether the Amendment was self executing at a hearing, but a court could rule it was effective January 6th.

Posted by: James Rose | Jan 22, 2021 1:49:44 PM

"How did the Capitol Hill riot in particular get the label "insurrection" and not just "riot"? Because certain news outlets pick the terminology?"

Mitch McConnell used it, for one.

The last time there was an invasion of the U.S. Capitol was during the War of 1812. When the Brits did it.

A reason it is called "insurrection" is the motive and purpose as is coming out in multiple official and unofficial reports. It was actually to try to "stop the count." The count to complete the election of the POTUS. Trying to block or overturn the election is a form of insurrection as is directly invading a government building to do so.

If invading the U.S. Capitol to stop the completion of the election of the POTUS is not more than a mere riot, words have curious meanings.

Posted by: Joe | Jan 15, 2021 4:24:25 PM

There is a reason that crimes like treason, sedition, and so on have been very narrowly interpreted over the history of the common law. Even before 1776.

That reason is that they are a threat to the liberties of ordinary people. Once you start making very broad definitions of legal concepts "treason" and "aid and comfort to the enemy" or quasi-legal concepts like "insurrection" and "rebellion" that lack reasonable definitions, you are starting down the path of using the law to suppress speech and political movements you do not like.

How many riots in Washington DC have there been over the past 150 years in proximity to the Capitol, White House, Supreme Court, or another place of political power and symbolism? How many of those events were legally defined as "insurrections"? E.g., how about the armed WWI veteran protest in central DC during the Great Depression?

Were the violent protests in front of the White House last summer an "insurrection?" Why were those rioters violently attacking the secret service and DC police? It sure looked like they wanted to break into the White House. For what -- rebellion or insurrection? Sedition? Attempted sedition?

How did the Capitol Hill riot in particular get the label "insurrection" and not just "riot"? Because certain news outlets pick the terminology?

Creative dreaming about how your political enemies are seditious traitors who deserve prosecution or that the President's term secretly ended already is not conducive to democratic self-government. Perhaps this partly explains why the only "seditious conspiracy" prosecution in modern (or any?) US history, led by MSNBC legal expert Barbara McQuade, collapsed. If the courts are still wise enough to throw out such charges, I doubt that the President's authority has been null and void since Jan. 6.

Respectfully, one might call this post political sedevacantism.

Posted by: phlegethon | Jan 11, 2021 8:14:12 PM

"I think the speech and debate clause seems to preclude being "questioned", i.e. subject to perhaps criminal sanction."

Questioned in another other place. You put it in caps, after all.

You can be questioned in the congressional body itself for speech and debate. Sen. Warren was sanctioned for violating the rules for comments she made about Sessions when he was nominated.

Posted by: Joe | Jan 11, 2021 3:35:40 PM

I think the speech and debate clause seems to preclude being "questioned", i.e. subject to perhaps criminal sanction. But if Section 3 of the 25th is to be reconciled with the text of the S&D clause, which it would have to be coming later in time, it must mean that participating in insurrection (let's leave inciting out of it for a moment) has to do *something*. If you engage in insurrection on the Senate floor (assuming we agree that it is insurrection - perhaps getting on C-SPAN and giving orders to attack fellow Senators and giving live updates on their location in the building for example), you may not be "questioned", but if Prof. Magliocca is right and Section 3 is self executing, you immediately are no longer a Senator. If it is not self executing, some entity - the Senator's state governor, the Senate itself, etc. could expel them, regardless of the S&D Clause. Otherwise, engaging in insurrection or rebellion gets a free pass if engaged in on the House or Senate floor, which would seem like the exact opposite result we would want.

Posted by: anonandoff | Jan 11, 2021 1:44:41 PM

The 14th is an amendment.

If an amendment is a clear clash with a previous provision, it wins out. Such is the purpose of an amendment. To change the existing rules.

OTOH, if there is "air" between the two, the general rule is to avoid a clash. So, e.g., the 21st Amendment has been interpreted not to give state discretion over liquor the meaning that equal protection or free speech is overridden.

I'm also not sure how "other place" limits the SAME place, that is expulsion by the Senate. It is clearly a separation of powers security. Speech can be "questioned" in the same place. Joseph McCarthy was censured.

Posted by: Joe | Jan 11, 2021 1:28:57 PM

I think removing would run into serious problems with the Speech or Debate Clause, (art. 1, sec. 6, cl. 1).

shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

That second clause has no exception for treason/felony/breach of the peace, and "ANY OTHER PLACE" seems to me to preclude removal based on speeches, basically entirely.

Posted by: to anonandoff | Jan 11, 2021 10:56:28 AM

Any thoughts on expelling Senators such as Cruz or Hawley based on Section 3? "Senator" is clearly mentioned so 1) is not at issue. 2) Would be harder since they arguably did less to incite, although you could argue that their speeches before the insurrection, their arguments in Congress, and their comments afterwards, could be "aid and comfort" although I would take this to mean more material support. Clause 3) analysis would remain the same I suppose, but the Senate would have to agree to bar the doors or not count their vote, or Texas or Missouri governors would have to treat this as a vacancy and appoint a replacement / hold a new election for it to have any teeth. Is the Senate now 50/48?

Posted by: anonandoff | Jan 11, 2021 4:10:09 AM

Perhaps this was the basis for Pence ordering the National Guard deployment during the insurrection.

Posted by: arthur | Jan 10, 2021 8:29:54 PM

I suspect that the technical legal merits of this argument is secondary. With Trump leaving office in 10 days, as a matter of long-term constitutional design it would be deeply problematic to have a method of removing the president from office on the say-so of a five-vote majority of the Supreme Court, circumventing the 2/3 Senate majority requirement of impeachment and the 2/3 of both houses requirement under the 25th Amend. At the same time, I hope someone mentions this to the commander at STRATCOM--just in case Trump decides to nuke Iran or China on his way out and they need some plausible reason to label that order unlawful.

Posted by: TJ | Jan 10, 2021 2:23:40 PM

I think realistically we will need enabling legislation, but that can pass by majority vote. Democratic control will help prevent it from being blocked. Let's pass it so not only Trump, but others are properly dealt with per constitutional rules.

Let's also enforce the other 14A penalty that GM is concerned about. We can call him to testify when a big voting rights bill, one including 14A enforcement, is in the hearings stage.

Posted by: Joe | Jan 10, 2021 1:21:10 PM

And not to forget. If at all, it is about free speech. Speech, associated with criminal offence ? That is hell in the US. It does elevate seriously the threshold. Not really realistic.

Posted by: El roam | Jan 10, 2021 9:53:28 AM

Interesting issues. But how self executing ? The president, would invoke the Fifth amendment (due process). Those are findings must be determined by court or alike. This is a criminal offence. Clear one. It is not like impeachment, where many claim, that misconduct, doesn't have to be criminal one, or matching prescribed criminal conduct or article.

Worth noting, Section 3, Article III, I quote:

" Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

So, worse than rebellion or resurrection one may argue. And yet, we need testimony of two witnesses or confession in open court.

But above all:

The constitution, distinguishes clearly, not once, between the president, and other offices. Why to mention, senators, electors, VP, and other offices, and not the president? It has been omitted deliberately one may argue. For the author of the post, allegedly, wants to include the president, with other federal offices ? And senators and VP explicitly mentioned ? It should have been mentioned deliberately. Let alone, while Article II, vests all executive powers, in the president. Personally so.

This is more than bit problematic.


Posted by: El roam | Jan 10, 2021 9:47:28 AM

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