Home New mexico united The disqualification clause of the Constitution can be applied today

The disqualification clause of the Constitution can be applied today


How the select committee can encourage the application of Article 3

As this report has described, there is already a legal infrastructure in place to enforce Section 3 against many federal, state, and local officials. Congressional action is not required for enforcement actions using these processes. However, certain statements by the select committee in its final report would reinforce any future enforcement action. Specifically, the Select Committee should make factual and legal findings that it has discovered disqualifying conduct and that Section 3 can and should be enforced through existing processes.

Factual Findings

The select committee is expected to issue factual findings detailing actions it has uncovered related to the January 6 attack that it says constitute “insurrection” or “rebellion”, or an act of “aiding or comfort to the enemies” of the United States, and should thus trigger the forfeiture clause. All available evidence supporting these conclusions should be presented with the report.

After undertaking a thorough investigation, the select committee is in a unique position to offer comprehensive evidence regarding which activities related to the attack on the Capitol should be considered disqualifying under the 14th Amendment and which should not. Clear boundaries around – and evidence of – the acts the committee has uncovered in its work could be instructive to a court or other body hearing a challenge under the above legal framework.

There are a variety of activities that could very well constitute acts covered by Section 3:

  • A member of Congress leading a Capitol tour group that included someone who planned to return to disrupt Electoral College vote certification on January 6 (provided the member was aware of those plans);
  • The president and others work to bully the vice president into refusing his constitutional duty to certify Electoral College votes;
  • President urging armed protesters to march to Capitol on Jan. 6;
  • The president refused to intervene in the attack despite the constitutional obligation as chief executive to intervene;
  • Councilors and lawyers are plotting to undermine the 2020 election results by coordinating and submitting a fake voters list.

Whether any of these conducts constitute “insurrection”, “rebellion” or an act of “aiding or comforting” the enemies of the United States will depend on what the facts discovered by the select committee reveal. .

The committee’s findings could include specific examples of behavior or more general statements of the types of actions related to the Jan. 6 attack that should disqualify someone from future employment, such as those included in HR 7906, the proposed legislation to establish a civil action for disqualification under Section 3. Whatever the findings, they must be supported by the considerable evidence the committee has obtained.

The classic example of presenting such evidence is the Watergate “road map” of 1974. In this case, a grand jury was providing evidence to the House of Representatives, and in this case it was the House evidence available to others, but the principle is the same.

Legal Conclusions

We believe that several legal findings would be helpful in clarifying debated or ambiguous points. Although non-binding, a formal statement by Congress, as the institution under attack, through the committee duly constituted to review the attack, should be instructive to courts or other decision-makers involved in existing processes.

First, although the overwhelming weight of scholarship and common sense makes it clear that the President and Vice President are considered officers of the United States for the limited purposes of the disqualification clause, the special committee’s report could include a clear statement to that effect, adding even more support to this body of evidence.

More importantly, the report should reaffirm that the mechanisms we have described in this report are viable and appropriate means of enforcing Section 3, where appropriate, even in the absence of federal legislation specifically designed to enforce the clause. of disqualification.

This type of assertion is all the more important since more than a century has passed between the last two successful applications of Section 3.

In the years since, some have criticized the current enforcement structure, suggesting that Section 3 can only be enforced by federal law. In 1869 and again in 2022, judges speculated that only an act of Congress could empower states to enforce the disqualification clause. The 1869 case, decided by Chief Justice Samuel Chase when he was sitting as a circuit judge, applied in federal court. The 2022 ruling, handed down by an Arizona county judge, was broader but was not upheld by that state’s top court.

Beyond that handful of rulings, the New York Bar Association recently released a report suggesting that the application of Section 3 at the state level is undesirable and suggesting that Congress adopt a federal civil law to prevent those who participated in the January 6 events from holding public hearings. office in the future. Importantly, the report does not determine whether such legislation is necessary, but rather advocates the recommendation as a way to avoid ambiguity and varied application in different jurisdictions.

We do not share these views and believe that the historical record, modern case law and principles of federalism largely resolve the ambiguities and support the legitimacy of the existing enforcement mechanisms we have detailed above.

As Judge Julius Richardson of the United States Court of Appeals for the Fourth Circuit recently explained, the idea that federal implementing law is a prerequisite for any application of Section 3 is based on the 1869 decision of Chief Justice Chase, a decision which directly contradicts another decision. Chase published around the same time, which “makes[s] it’s hard to trust Chase’s interpretation.

Moreover, there is strong evidence against the strict necessity of a federal law.

While the Ku Klux Klan Act offered the federal enforcement law Chase sought, there are at least three examples of state courts disqualifying individuals from office under Section 3 of the 14th Amendment before the enactment of such legislation. This too demonstrates that a federal statutory enforcement mechanism is not necessary for the operation of Section 3.

This also reflects a unique aspect of Section 3: it is the only qualification for state-level office set forth in the United States Constitution. State courts and election officials not only have an interest in enforcing Section 3, but a positive obligation to do so.

At the federal level, with the Ku Klux Klan law lapsed, the federal government what guarantee
the law remains on the books. Congress also has its own internal mechanisms to enforce Section 3 against its members.

A clear statement from the select committee will help dispel the misconception that further act of Congress is required to enforce Section 3.