Sunday, January 07, 2024

The Congress--But Not the Supreme Court--Should Debate Amnesty for Trump

I have argued that while Donald Trump is disqualified from public office by the first sentence of Section Three of the 14th Amendment, it might be politically prudent for the Congress to exercise its power under the second sentence in Section Three to grant him amnesty.

We need the Supreme Court to decide the constitutional question of the original meaning of the first sentence in Section Three as applied to Trump.  But we also need the Congress to decide the political question of applying the second sentence of Section Three to Trump's case, in deciding whether it would be politically prudent to grant him amnesty.

Last Wednesday, Trump's lawyers filed a Petition for Writ of Certiorari with the U.S. Supreme Court, asking that the Court consider overthrowing the decision of the Colorado Supreme Court ordering that Trump be excluded from the 2024 presidential primary ballot.  With amazing speed, the Court granted certiorari two days later on Friday.  The Court is scheduling oral arguments for February 8.  The Colorado Republican primary is scheduled for March 5 ("Super Tuesday").  The Colorado Supreme Court stayed its ruling until January 4, 2024, and announced that the stay would be extended automatically if Trump sought review by the U.S. Supreme Court before that date.

Here's the text of Section Three of the 14th 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, 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 vote of two-thirds of each House, remove such disability."

There have been four kinds of arguments (three constitutional arguments and one political argument) against declaring that Trump is disqualified from running for the office of the President under Section Three.  The first kind of constitutional argument is that Section Three does not apply to the President, because the presidency is not an "office . . . under the United States," and because the President takes a special oath that is not an oath "to support the Constitution."  This argument is not persuasive because the Constitution does refer to "the Office of the President," and because the presidential oath to "preserve, protect, and defend the Constitution" is surely an oath "to support the Constitution."

The second kind of constitutional argument is the claim that while Section Three is about the disqualification to "hold any office" under the United States, this does not disqualify a presidential candidate from running for the office.  This is not persuasive because the names of presidential candidates cannot properly be put on a primary ballot or an election ballot if they are disqualified from holding the office.  Just as someone who is not a natural-born citizen of the United States cannot run for the office of presidency, someone disqualified under Section Three cannot run for that office.

The third kind of constitutional argument is that in Section Three the disqualification comes only from those who have violated their oath to support the Constitution by having "engaged in insurrection or rebellion" against the United States, and Trump's influence over the violent assault on the Capitol on January 6th was not an engagement in insurrection.  That is not persuasive because the evidence that he did indeed engage in insurrection is powerful enough that the majority of both the House and Senate (in their vote on impeachment) agreed that he was an insurrectionist, and the evidence gathered by the Select Committee of the House to Investigate the January 6th Insurrection confirmed this conclusion.

The most popular argument against disqualifying Trump under Section Three is the political argument that this would violate the most fundamental principle of representative democracy that the people should be free to choose those who govern them.  That's the argument stated in the first paragraph of the Petition from Trump's lawyers, and that's the kind of objection that one hears most often.

But as I have indicated in previous posts, Section Three anticipates and responds to this argument by allowing the Congress to make a political judgment as to whether disqualifying someone under Section Three is politically prudent or not.  It does this in the second sentence: "But Congress may by a vote of two-thirds of each House, remove such disability."

Indeed, after the Civil War, and after the ratification of the 14th Amendment, the Congress did grant amnesty to many former Confederates.  And in 1872, the Congress passed the Amnesty Act, which removed the Section Three office-holding disqualification from all but the most prominent Confederates (such as Jefferson Davis and Robert E. Lee).  Amazingly, even in the 1970s, the Congress granted symbolic amnesty to Davis and Lee!

So, why isn't Congress debating legislation for granting amnesty to Trump?  I have noticed only one commentator--Gerard Magliocca writing in the New York Times--has pointed to the oddity that those making the political argument against disqualifying Trump ignore the fact that Section Three allows Congress to make the political judgment as to whether it is prudent to disqualify Trump.  Disqualifying Trump under Section Three is not anti-democratic if the democratically elected representatives of the people in Congress have decided that they will not debate this question.

It is strange that most people, including the Congress, seem to be assuming that it's the role of the Supreme Court to decide this question.  Certainly, the Court has the authority to resolve the constitutional arguments about interpreting Section Three as applied to Trump.  But the political argument over the prudence of disqualifying Trump should be resolved by a political debate in Congress over whether it would be best for the country to give Trump amnesty.

That Section Three of the 14th Amendment allows for this shows how well-crafted that amendment is.

No comments: