The complaint against her is that she violated the 14th Amendment, Section 3, which was used after the Civil War to not let those who participated in the war to come back to congress. The claim is she engaged in insurrection and that makes her ineligible to run for congress again.
But, it seems a little unclear if this could apply to someone running for re-election as president since it says such people (insurrectionists) cannot “hold any office” but it seems to only name members of congress being ineligible.
I’d think it does not apply but I cannot find much saying one way or another.
“Any office” is pretty broad. I don’t see why it wouldn’t apply to the office of President.
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.
I agree. I think it is pretty clear that it applies to a presidential candidate. The trick will be who determines whether a person “shall have engaged in insurrection or rebellion.” A judge? Is a conviction required?
Rather than argue about whether the presidency is an office, something that undoubtedly has been addressed in some context over the years, or why the President and Vice-President weren’t mentioned specifically, since they could have been but weren’t, I think a different ambiguity is the core.
What does it mean legally today to have “engaged in insurrection or rebellion”? They had a clear definition then. Who has been convicted of insurrection or rebellion since? Certainly not any of the Capital Rioters. I haven’t checked all the hundreds of cases, but it seems clear that prosecutors are carefully staying away from such terms.
People may throw around such terms but it’s been hard finding judges who believe that the 14th amendment applies to words. MTG has one, but Matthew Cawthorn’s thought otherwise.
The Civil War provided sufficient legal verification for a rebellion, with formal terms of surrender. One would think that barring people from office would require at least a formal determination for such a crime before the banning begins. Think of the harm possible if we decided that the public reaction to words would disqualify you from office for life.
Right. In all seriousness, that is an open question that can get us into some great mischief down the road. Is raising taxes on the rich socialism and giving “aid and comfort” to those Godless commies? We start to go down the rabbit hole with that stuff.
That’s the part of the text that makes me wonder. They tell you who this applies to and they conspicuously didn’t mention the president or vice-president. I cannot imagine that was an oversight.
If any text gets pored over by many, many people repeatedly it would be a constitutional amendment. I doubt they all just missed that ambiguity. Meaning they probably thought it was unambiguous. They told us who they meant it to apply to.
I also understand the larger issue of who decides who is guilty of insurrection for this even to apply. But that seems a different question.
Well, all the offices they did mention are those that are elected by citizens of one specific state (which in those days would have included states that joined the Confederacy).
I’m assuming that applying it it President and Vice-President was (back then) would have been completely pointless and un-necessary. How could an insurrectionist end up getting through a country wide electoral process? And if said insurrectionist did end up getting elected, obviously they would have been vetted, just by virtue of getting 51% of the electoral votes.
Congress, on the other hand, is only elected at a individual state or district level, and several states at the time would probably elect multiple popular insurrectionists if given the option to. The country had a vested interest in not giving them a platform at the federal level.
Congress found it inconceivable that any Confederate could be elected President, so they didn’t bother to cover that “if.”
Congress found it conceivable that a Confederate could be elected President and felt that the voters could decide.
Congress had their heads up their asses and gave no thought to the issue.
Number one is backed by the fact that both Section 2 and Section 3 explicitly mention the President and Vice-President, one in regard to voters, the other in regard to electors.
Number two is more unlikely, considering the hatred the Radical Republicans had for the defeated enemy.
Number three is always a good bet because every amendment longer than a sentence has enormous holes and ambiguities, and therefore a million situations people think up that is not covered explicitly by the text.
I don’t understand why some think there is an ambiguity. ANY officer includes the president and vice-president. What is the confusion or ambiguity? Remember this was passed during the Johnson administration when Congress would disrespect the presidency at any chance it had.
I read it as “any office” meaning exactly what it says, and then, since they thought that the greatest risk was from state-elected offices, they called those out specifically. Otherwise, states might claim that “Senator from Alabama isn’t an office under the United States; it’s an office under Alabama, so the amendment doesn’t apply”. Because that’s the sort of thing the insurrectionists would have claimed.
Well…they list who the amendment applies to and even drill down to electors in specificity.
But, they miss the most obvious elected office of all? How could that have possibly been missed? If they wanted it to include the presidency then ISTM that would be right up front. It is inconceivable that they just missed that one.
To me, “any office” means things like Federal Dog Catcher.
There is an argument that “officer of” or “officer under” the United States does not include elected officials. This is probably best illustrated in the Appointments Clause (all “Officers of the United States” are appointed by the President, which obviously does not apply to the President, Vice President, members of Congress, etc.). More controversially, this also creates the question about the place of the Speaker in the line of succession (an "Officer may act as President) and the application of the Foreign Emoluments Clause to elected officials.
That reading is certainly supported by the specification of Senators and Representatives as distinct from the holder of “any office . . . under the United States” in the 14th Amendment.
On the other hand, I’ve read (and don’t have time right now to look up) that during the ratification debate, one senator or congressman asked why it didn’t apply to the President or Vice President and another pointed to the “any office” language… Although, I’m not sure what that tells you.
Obviously, none of this has been tested (though whether the President is an “Officer” came up several times in the previous administration). And Congress eliminated Section 3 only four years after it passed.
Well…they absolved anyone (most anyone, some were excepted) who may have been involved in insurrection from the Civil War. It did not end the amendment or absolve anyone in the future.
Yes, but it still should be read the context of a post civil war, post surrender, obvious to a blind man that there was a rebellion situation.
What is dangerous, IMHO, is attempting to apply this to January 6. Let’s say that I punch my mailman because he keeps bringing me bills. An argument could be made that I obstructed a constitutional function and that violence against mail carriers undermine our system of government and thus I gave “aid and comfort” to those who are actively trying to overthrow the government. Any act, large or small, could come under this prohibition, and under this lawsuit, could be decided by a single partisan judge. I can’t believe that is proper.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States,
I see it now. If the president appoints “all other” officers (including those stated) then he cannot himself be an “officer.” The argument seems textually sounds but a bit ridiculous. As @Whack-a-Mole said, we can constitutionally prohibit a person from being a Federal Dog Catcher but not the President of the United States? I guess a counter argument would be that the people (better stated, the electors) can take the knowledge of prior rebellion and choose to elect that individual anyways, a feature, not a bug.
Well, a case was brought before the court and the court must make a decision. AFAIK, the 14th amendment is still law so can a judge just ignore it?
It seems to me the only court that can tell us it was only ever about the Civil War and totally does not count any more is the Supreme Court (doubtless they would say it in a better way while defanging it).