« Oh, My | Main | Job Posting - Program Director - Karsh Center for Law and Democracy »

Sunday, February 14, 2021

Section Three Enforcement Legislation

Now that the impeachment trial is over, the work of implementing Section Three of the Fourteenth Amendment begins. When the House of Representatives reconvenes on Tuesday, I hope that there will be an effort to introduce general Section Three enforcement legislation. This is not glamorous work. It involves old-fashioned legislating with hearings, markups, and careful deliberation. There is no rush. They can take their time and get this right.

For example, who should have a right of action or the authority to bring a Section Three case? What should the standard of proof be? Should there be a three-judge District Court to hear these cases? Or an expedited appeal process to the Supreme Court. We need these questions answered before 2023, otherwise what may come afterward will be chaos. 

Posted by Gerard Magliocca on February 14, 2021 at 07:23 PM | Permalink


As a followup to my earlier post about civil actions against Trump, see:

Trump Sued For Causing The Riot;
Criminal Complainant Had Predicted Just Such a Law Suit:

“As predicted and encouraged by the public interest law professor whose complaints triggered two separate criminal investigations of Donald Trump in Georgia, Representative Bennie Thompson, Democrat of Mississippi, has filed a civil law suit against Trump, as well as his personal lawyer Rudolph W. Giuliani.”


Posted by: LawProf John Banzhaf | Feb 16, 2021 2:47:18 PM

So as long as you don't call it a bill of attainder this would be constitutional?

Posted by: Anonymous | Feb 16, 2021 2:31:08 PM

We could muddle through if no federal enforcement authority is established. But I'm not confident.

Posted by: Gerard | Feb 15, 2021 7:19:04 PM

It's my sense that federal enforcement legislation is needed less for preemptive elective challenges (where there is already state-level infrastructure for restricting ballot access) than it is for removal-from-office challenges. The writ of quo warranto outside of the District of Columbia is largely a black box, so things could get messy there and legislation would be helpful, but its status as a prerogative writ with a rich history should lead to relatively easy resolution of procedural questions once put before a court.

Even given those difficulties, we do have the Appointments Clause-esque lawsuits (assuming a court feels comfortable distinguishing Griffin in light of the past 150 years) that could be usable and may represent the best possible balance between a free-for-all approach (any registered voter in the relevant district) and the prerogative approach (only the Department of Justice can institute proceedings). And if we enact legislation to avoid the Appointments Clause-esque proceedings, do we also change how courts handle Appointments Clause challenges?

What would be wonderful on the preemptive elective front prior to 2023 would be a fifty-state push for simplification, but like I said above, the infrastructure is already there for those who look. And for the presidency, it only takes one state supreme court determination to get looked at by the U.S. Supreme Court, so maybe a full fifty-state push isn't needed.

I think we have all the tools we need presently, so I'm not as worried about people getting away with anything in the interim. But maybe I'm biased given how I structured my Section 3 paper and because my next project is a sort of appendix to that paper as a fifty-state guide on state election disqualification challenges.

Posted by: Myles Lynch | Feb 15, 2021 7:15:03 PM

Democrats supported impeachment, support criminal investigations and very well might join a civil lawsuit. There, however, the people actually physically harmed and/or killed would have the strongest case.

But, if you are seriously concerned about perceived hypocrisy, I would think the question would be more so on Mitch McConnell and other Republicans who do not deny Trump's guilty, but said an impeachment conviction was not appropriate. Note 17 Republicans did support impeachment/conviction.

Posted by: Joe | Feb 15, 2021 4:14:46 PM


U.S. Senate Minority Leader Mitch McConnell has publicly stated that Donald Trump is "practically and morally responsible" for the January 6th riot, a view apparently shared by Democratic members of Congress.

Indeed, McConnell went on to remind his Democratic colleagues that Trump "is still liable to be tried and punished in the ordinary tribunals of justice"; that "President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run": and that fortunately "we have civil litigation" and "former presidents are not immune from being accountable."

So, now that Trump has been acquitted in the Senate, it will be interesting to see if any of those who voted to charge him with causing the riot - and especially the House managers who argued so forcefully for that very assignment of blame - will have the courage of their convictions, and dare to try to prove their assertions in a court of law before an impartial judge or jury.

Such a civil action, if successful, would vindicate their repeated, disputed, and just-rejected claims that Trump caused the destructive riot.

It could also assure that he does not escape all consequences for his actions, since the damages from the riot - including those from several wrongful death actions - could easily amount to tens of millions of dollars, plus even more in punitive damages.

But if not a single Democratic member of Congress comes forward to bring such a civil action - probably, and most effectively, as a class action law suit - Trump may well get away with what he has done, since the Senate has just acquitted him. Absent such a suit, Democrats might also be perceived as hypocrites who wrongfully and baselessly accused him of causing a riot for largely political reasons.

Posted by: LawProf John Banzhaf | Feb 15, 2021 3:23:51 PM

None of the reasons against the trial cited in a previous entry held up. The Leahy presiding being trouble particularly, if only because that was so trivial.

I firmly support 14A legislation. I support enforcement of ALL sections of the 14A, including related to voting rights. A voting rights bill is fundamental and that too can be examined there.

As to timing, the legislation very well might apply to local elections. We already have seen reports of state officials being involved. So, it should be passed by the summer in my book. That should give you enough time. And, even then, it will be some supposition. Since the last time this was really applied was the 19th Century and the details are subject to dispute, including among experts of the provision.

So, it very well might somehow be challenged in court. Thus, the result should be the best reasonable product possible.

Posted by: Joe | Feb 15, 2021 10:56:48 AM

Post a comment