I'm afraid the Insurrection Clause (Section 3 of the 14th Amendment) is a dead letter as far as the President is concerned. But the 22nd Amendment is still very much alive, as well as that little clause in Article II about the President being a "natural-born citizen." Even the voters now that.
Ten years ago, we all would have said, "Well, if someone tried to overthrow the government and then ran again, obviously someone would put a stop to it!" But one party chucked that out the window as soon as it became politically convenient to do so, and it turned out that there *is nobody* who can be relied upon to put a stop to it -- at least, not if a major party's voters don't want to!
What makes you think the other rules would last ten seconds if it became politically convenient for another political party to toss it overboard? As we've seen this cycle, voters can talk themselves into just about anything!
There is a slight difference in that there is legitimate disagreement about whether there was an insurrection on January 6 and whether or not Trump actively participated in it or simply failed to do anything about it--or, to put it another way, whether his role was that of John Floyd or James Buchanan. (I say this as someone who thinks Trump's reckless and feckless handling of the aftermath of the 2020 election is practically disqualifying.)
However, the questions of "is this person going to be serving a third term as POTUS" or "is this person a natural-born citizen of the United States" offer a lot less wiggle room. Not to say that there still wouldn't be members of the American electorate who'd vote for their party's candidate anyway, but I think the majority of persuadable voters would go against such blatantly obvious unconstitutionality.
That having been said, I could be wrong. The American people are getting more and more illiberal.
My thinking here is that the "legitimate disagreement" you speak of grows in response to the political need for it. This can be done in two ways: either by leveraging open holes in the language of the Constitution's text (e.g. redefining "natural born" or "insurrection"), or by denying the facts (e.g. falsifying a birth certificate or insisting the President desired only peaceful protest).
I could be wrong, and this is inherently untestable, but I think that, if I went back in time to ten years ago, and I presented a brief, non-prosecutorial account of January 6 to a group of informed voters as a hypothetical, the voters would discover no legitimate disagreement among themselves.
But, in the actual event, it's never as clear-cut as it is in a brief hypothetical. There are always ways to twist a text if you're so inclined (especially from the progressive direction), and there are plenty of ways for bad actors to just lie. Good citizens, who try to respect due process of law and presumptions of innocence, respond to this by developing doubts. These doubts are perfectly legitimate under the circumstances. My claim here is not that they are illegitimate, or that citizens who harbor them are acting in bad faith, but that unqualified candidates with sufficient support from clever legal teams can likely cultivate doubts about *any* of the qualifications clauses.
The last line of defense is the voters, as you say, but I think this election shows a big problem with counting on voters to rebuke blatantly unconstitutional behavior: there's always an opponent, who may be as bad or worse.
In this election, voters saw blatantly unconstitutional behavior by Trump... but the other candidate was Harris, who *also* promised both unconstitutional behavior and very bad policy. In a clean yes-or-no referendum on whether Trump did an insurrection on January 6, I think Trump loses! (There is weak polling evidence that this is the case.) Instead of a referendum, though, we got a binary, all-or-nothing choice between Trump and Harris. Juuuuuust enough voters *reluctantly* accepted Trump's bad behavior (as a lesser evil) to put him back in power.
It seems to me that a 30-year-old running for President would have the same advantage: "even if you hate me and think I'm unconstitutional, what're you gonna do? vote for the other guy? ha!" Americans' willingness to vote for the 30-year-old isn't even necessarily a sign of growing illiberalism. If the 30-year-old's opponent wants to violate more important provisions of the Constitution, Americans might even be *defending* the Constitution by voting in the 30-year-old.
So I think we really need one of our institutions to have an explicit process for vetting qualifications, instead of counting on voters. Since we don't, I think that, if political pressures are ever such that a major political party sees some need to create doubt about the age or term-limit requirements, the firewall will not hold.
However, I agree with you to this extent: I don't think it's likely that political pressures will ever actually do that. The most unlikely part of this whole hypothetical, in my view, is that the Progressive Party would nominate Greta Thunberg at all, when it could just nominate AOC, who would probably be a better candidate for lots of reasons. The Trump campaign's need to disable the insurrection clause was the result of an outrageously improbable set of circumstances that *probably* won't repeat again in our lifetimes.
All I'm saying in this article is that, if those circumstances do repeat themselves, we should expect the same outcome.
I'll tag @Phil H here as well, since this is basically my reply to both your comments at once.
"My thinking here is that the "legitimate disagreement" you speak of grows in response to the political need for it."
I do not believe there is sufficient evidence that Trump 'engaged in' insurrection to bar him from office under the 14th amendment. This is a fairly insulting thing for you to say and, given I'm of a member of the group you aimed it at, I feel kind of insulted.
I've enjoyed those posts of yours I have read so far, some even a great deal, and I'm disappointed that you would find it right to insult such a broad category of people that you would include me.
The basic Article II requirements, plus the 22nd Amendment are well-known to all, enough so that had, say, Barack Obama wanted a third term, no one would take him seriously, let alone cooperate. Ditto the "natural born citizen" requirement, which meant the mere suggestion that Obama was born outside the US, even though he clearly was not, had to be taken seriously enough to be disproved.
The Insurrection Clause was not well known by the public. And had it been successfully used, it would have caused a crisis, and likely would have been flouted, in the manner you presented in your hypothetical.
It's not so much the convenience of the parties, but what the public thinks is legitimate. The Insurrection Clause was widely seen as an illegitimate attempt to block Trump's re-election.
Let's see how that works if Trump tries to run for a third term.
Just like with the Insurrection Clause, one or more states would bar Trump from the ballot. If the Trump campaign goes to court this time, they are facing, not an obscure dormant Constitutional provision know just to a few law professors, but a Constitutional Amendment everyone knows about. The courts will side with the states and declare Trump ineligible. Maybe some states ignore the courts and submit EVs for Trump. But then, under the ECRA, those votes are protested as "not regularly given" in Congress. In any case, with some states not listing Trump, the odds of his getting an EV majority are slim.
Why would you expect the courts to side with the states, when, just this year, they unanimously found a (ridiculous) legal pretext for siding *against* the states?
I can imagine reasons why the Court might treat the 22nd Amendment differently from the 14th, but the only reason you've suggested here is that "everyone knows about" the 22nd Amendment. (But SCOTUS is a few law professors, so they did know about the 14th.) Is that all it takes to get the courts to intervene? Why? (Legitimacy?)
The message I took away from Trump v. Anderson is that the Supreme Court thinks that decisions about presidential candidates belong to the People, not to the courts, and that they will find any excuse to avoid intervening even when the law requires them to intervene. That gives me very low confidence.
Meanwhile, as long as Trump supporters retain control over at least one house of Congress, even by a single vote, it is impossible to sustain an objection against *any* Trump electoral votes. It is not certain, but it is probable, that Republicans still control the Senate come J6 2029.
Maybe a House of Congress (if Dems win something in 2026 I guess) could have standing for quo warranto on the ground that they don't want their bills vetoed by a fake president? If some cabinet official actually gets fired maybe that is close enough standing? Theoretically maybe the AG could stay and start a quo warranto and claim the removal was illegitimate if he is removed, tho that just sounds like something that would fail embarassingly. I hope there is some advocacy group with competent lawyers out there to at least try something, there's no shortage of people who hate Trump.
There is, I believe, still a factual error in this article that needs clarifying, specifically having to do with New Mexico ex rel. White et al v. Griffin.
As I understand the ultimate disposition of the case, Mr. Griffin, after losing in a trial court in Santa Fe County, had an appeal as of right directly to the New Mexico Supreme Court. However, this right is subject to certain state-law procedural requirements, which Mr. Griffin failed to meet. Consequently, the New Mexico Supreme Court, rather than upholding the trial court's findings on the merits, dismissed Mr. Griffin's appeal on procedural grounds.
Mr. Griffin then appealed to the federal Supreme Court, since such appeals are permitted from state supreme courts (or whatever your state happens to call its highest court for the suit in question, if you're in a state like New York, Texas or Oklahoma) on questions of federal law, and the proper interpretation of Section Three of the Fourteenth Amendment and its applicability and adjudication fall squarely within that ambit.
Of note is that there were no amicus briefs filed, and the respondents on appeal initially waived their right of response to Mr. Griffin's petition.
The problem Mr. Griffin faced in appealing to the federal Supreme Court is that the state Supreme Court had not ruled against him on questions of federal law, but rather had made a procedural ruling on the basis of New Mexico's civil procedure and quo warranto statutes. (It is perhaps worth noting here that like many states, Colorado and Minnesota among them, New Mexico's rules of civil procedure are effectively just a copy of the federal rules, which probably helps state government lawyers not have to keep two different sets of rules straight, but nonetheless in the New Mexico civil action context of this suit they are a state law, not a federal one.) The holdings on the questions of federal law were only made by the inferior court in Santa Fe County. Consequently there was, technically, nothing on which the state Supreme Court had ruled that Mr. Griffin could appeal.
The federal Supreme Court dismissed his application for a writ of certiorari without comment, some time after deciding Trump v. Anderson.
Ultimately, only the Santa Fe County trial court ever considered the merits of White v. Griffin. Mr. Griffin's error in failing to properly appeal to the state Supreme Court led to a procedural dismissal in that venue, which in turn led to the federal Supreme Court lacking any basis for appellate review, since the state Supreme Court had not ruled on any questions of federal law.
All that said, of course, given the holding in Trump v. Anderson, New Mexico's courts were entirely within their rights to adjudicate whether Mr. Griffin was eligible to hold an office under the state of New Mexico, such as serving on a county board of commissioners. Whether the trial court properly interpreted the law in the context of the events of January 6, 2021 is not something on which any higher court ruled, and indeed could not rule due to Mr. Griffin failing to meet the procedural requirements of New Mexico law.
It took me ages to re-read these documents and the underlying New Mexico court rules, but you're clearly correct: contra my recollection, the New Mexico Supreme Court did not affirm (or deny) the holdings of the trial court. Belatedly, corrected.
“Obviously, this was never about Greta Thunberg.” Talk about a twist ending!
James, your cynicism far exceeds mine!
I'm afraid the Insurrection Clause (Section 3 of the 14th Amendment) is a dead letter as far as the President is concerned. But the 22nd Amendment is still very much alive, as well as that little clause in Article II about the President being a "natural-born citizen." Even the voters now that.
Why? What makes them alive?
Ten years ago, we all would have said, "Well, if someone tried to overthrow the government and then ran again, obviously someone would put a stop to it!" But one party chucked that out the window as soon as it became politically convenient to do so, and it turned out that there *is nobody* who can be relied upon to put a stop to it -- at least, not if a major party's voters don't want to!
What makes you think the other rules would last ten seconds if it became politically convenient for another political party to toss it overboard? As we've seen this cycle, voters can talk themselves into just about anything!
There is a slight difference in that there is legitimate disagreement about whether there was an insurrection on January 6 and whether or not Trump actively participated in it or simply failed to do anything about it--or, to put it another way, whether his role was that of John Floyd or James Buchanan. (I say this as someone who thinks Trump's reckless and feckless handling of the aftermath of the 2020 election is practically disqualifying.)
However, the questions of "is this person going to be serving a third term as POTUS" or "is this person a natural-born citizen of the United States" offer a lot less wiggle room. Not to say that there still wouldn't be members of the American electorate who'd vote for their party's candidate anyway, but I think the majority of persuadable voters would go against such blatantly obvious unconstitutionality.
That having been said, I could be wrong. The American people are getting more and more illiberal.
My thinking here is that the "legitimate disagreement" you speak of grows in response to the political need for it. This can be done in two ways: either by leveraging open holes in the language of the Constitution's text (e.g. redefining "natural born" or "insurrection"), or by denying the facts (e.g. falsifying a birth certificate or insisting the President desired only peaceful protest).
I could be wrong, and this is inherently untestable, but I think that, if I went back in time to ten years ago, and I presented a brief, non-prosecutorial account of January 6 to a group of informed voters as a hypothetical, the voters would discover no legitimate disagreement among themselves.
But, in the actual event, it's never as clear-cut as it is in a brief hypothetical. There are always ways to twist a text if you're so inclined (especially from the progressive direction), and there are plenty of ways for bad actors to just lie. Good citizens, who try to respect due process of law and presumptions of innocence, respond to this by developing doubts. These doubts are perfectly legitimate under the circumstances. My claim here is not that they are illegitimate, or that citizens who harbor them are acting in bad faith, but that unqualified candidates with sufficient support from clever legal teams can likely cultivate doubts about *any* of the qualifications clauses.
The last line of defense is the voters, as you say, but I think this election shows a big problem with counting on voters to rebuke blatantly unconstitutional behavior: there's always an opponent, who may be as bad or worse.
In this election, voters saw blatantly unconstitutional behavior by Trump... but the other candidate was Harris, who *also* promised both unconstitutional behavior and very bad policy. In a clean yes-or-no referendum on whether Trump did an insurrection on January 6, I think Trump loses! (There is weak polling evidence that this is the case.) Instead of a referendum, though, we got a binary, all-or-nothing choice between Trump and Harris. Juuuuuust enough voters *reluctantly* accepted Trump's bad behavior (as a lesser evil) to put him back in power.
It seems to me that a 30-year-old running for President would have the same advantage: "even if you hate me and think I'm unconstitutional, what're you gonna do? vote for the other guy? ha!" Americans' willingness to vote for the 30-year-old isn't even necessarily a sign of growing illiberalism. If the 30-year-old's opponent wants to violate more important provisions of the Constitution, Americans might even be *defending* the Constitution by voting in the 30-year-old.
So I think we really need one of our institutions to have an explicit process for vetting qualifications, instead of counting on voters. Since we don't, I think that, if political pressures are ever such that a major political party sees some need to create doubt about the age or term-limit requirements, the firewall will not hold.
However, I agree with you to this extent: I don't think it's likely that political pressures will ever actually do that. The most unlikely part of this whole hypothetical, in my view, is that the Progressive Party would nominate Greta Thunberg at all, when it could just nominate AOC, who would probably be a better candidate for lots of reasons. The Trump campaign's need to disable the insurrection clause was the result of an outrageously improbable set of circumstances that *probably* won't repeat again in our lifetimes.
All I'm saying in this article is that, if those circumstances do repeat themselves, we should expect the same outcome.
I'll tag @Phil H here as well, since this is basically my reply to both your comments at once.
"My thinking here is that the "legitimate disagreement" you speak of grows in response to the political need for it."
I do not believe there is sufficient evidence that Trump 'engaged in' insurrection to bar him from office under the 14th amendment. This is a fairly insulting thing for you to say and, given I'm of a member of the group you aimed it at, I feel kind of insulted.
I've enjoyed those posts of yours I have read so far, some even a great deal, and I'm disappointed that you would find it right to insult such a broad category of people that you would include me.
The basic Article II requirements, plus the 22nd Amendment are well-known to all, enough so that had, say, Barack Obama wanted a third term, no one would take him seriously, let alone cooperate. Ditto the "natural born citizen" requirement, which meant the mere suggestion that Obama was born outside the US, even though he clearly was not, had to be taken seriously enough to be disproved.
The Insurrection Clause was not well known by the public. And had it been successfully used, it would have caused a crisis, and likely would have been flouted, in the manner you presented in your hypothetical.
It's not so much the convenience of the parties, but what the public thinks is legitimate. The Insurrection Clause was widely seen as an illegitimate attempt to block Trump's re-election.
Let's see how that works if Trump tries to run for a third term.
Just like with the Insurrection Clause, one or more states would bar Trump from the ballot. If the Trump campaign goes to court this time, they are facing, not an obscure dormant Constitutional provision know just to a few law professors, but a Constitutional Amendment everyone knows about. The courts will side with the states and declare Trump ineligible. Maybe some states ignore the courts and submit EVs for Trump. But then, under the ECRA, those votes are protested as "not regularly given" in Congress. In any case, with some states not listing Trump, the odds of his getting an EV majority are slim.
Why would you expect the courts to side with the states, when, just this year, they unanimously found a (ridiculous) legal pretext for siding *against* the states?
I can imagine reasons why the Court might treat the 22nd Amendment differently from the 14th, but the only reason you've suggested here is that "everyone knows about" the 22nd Amendment. (But SCOTUS is a few law professors, so they did know about the 14th.) Is that all it takes to get the courts to intervene? Why? (Legitimacy?)
The message I took away from Trump v. Anderson is that the Supreme Court thinks that decisions about presidential candidates belong to the People, not to the courts, and that they will find any excuse to avoid intervening even when the law requires them to intervene. That gives me very low confidence.
Meanwhile, as long as Trump supporters retain control over at least one house of Congress, even by a single vote, it is impossible to sustain an objection against *any* Trump electoral votes. It is not certain, but it is probable, that Republicans still control the Senate come J6 2029.
Haven't read, but overly excited that you used "pretender to the American throne!" I want a 10% cut on merch with that phrase :D
Thank you for war gaming this out, but remember the last time you wrote political fanfiction! Take care not to get whacked with Apollo's dodge ball.
Maybe a House of Congress (if Dems win something in 2026 I guess) could have standing for quo warranto on the ground that they don't want their bills vetoed by a fake president? If some cabinet official actually gets fired maybe that is close enough standing? Theoretically maybe the AG could stay and start a quo warranto and claim the removal was illegitimate if he is removed, tho that just sounds like something that would fail embarassingly. I hope there is some advocacy group with competent lawyers out there to at least try something, there's no shortage of people who hate Trump.
There is, I believe, still a factual error in this article that needs clarifying, specifically having to do with New Mexico ex rel. White et al v. Griffin.
As I understand the ultimate disposition of the case, Mr. Griffin, after losing in a trial court in Santa Fe County, had an appeal as of right directly to the New Mexico Supreme Court. However, this right is subject to certain state-law procedural requirements, which Mr. Griffin failed to meet. Consequently, the New Mexico Supreme Court, rather than upholding the trial court's findings on the merits, dismissed Mr. Griffin's appeal on procedural grounds.
Mr. Griffin then appealed to the federal Supreme Court, since such appeals are permitted from state supreme courts (or whatever your state happens to call its highest court for the suit in question, if you're in a state like New York, Texas or Oklahoma) on questions of federal law, and the proper interpretation of Section Three of the Fourteenth Amendment and its applicability and adjudication fall squarely within that ambit.
You can see the relevant documents here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-279.html
Of note is that there were no amicus briefs filed, and the respondents on appeal initially waived their right of response to Mr. Griffin's petition.
The problem Mr. Griffin faced in appealing to the federal Supreme Court is that the state Supreme Court had not ruled against him on questions of federal law, but rather had made a procedural ruling on the basis of New Mexico's civil procedure and quo warranto statutes. (It is perhaps worth noting here that like many states, Colorado and Minnesota among them, New Mexico's rules of civil procedure are effectively just a copy of the federal rules, which probably helps state government lawyers not have to keep two different sets of rules straight, but nonetheless in the New Mexico civil action context of this suit they are a state law, not a federal one.) The holdings on the questions of federal law were only made by the inferior court in Santa Fe County. Consequently there was, technically, nothing on which the state Supreme Court had ruled that Mr. Griffin could appeal.
The federal Supreme Court dismissed his application for a writ of certiorari without comment, some time after deciding Trump v. Anderson.
Ultimately, only the Santa Fe County trial court ever considered the merits of White v. Griffin. Mr. Griffin's error in failing to properly appeal to the state Supreme Court led to a procedural dismissal in that venue, which in turn led to the federal Supreme Court lacking any basis for appellate review, since the state Supreme Court had not ruled on any questions of federal law.
All that said, of course, given the holding in Trump v. Anderson, New Mexico's courts were entirely within their rights to adjudicate whether Mr. Griffin was eligible to hold an office under the state of New Mexico, such as serving on a county board of commissioners. Whether the trial court properly interpreted the law in the context of the events of January 6, 2021 is not something on which any higher court ruled, and indeed could not rule due to Mr. Griffin failing to meet the procedural requirements of New Mexico law.
It took me ages to re-read these documents and the underlying New Mexico court rules, but you're clearly correct: contra my recollection, the New Mexico Supreme Court did not affirm (or deny) the holdings of the trial court. Belatedly, corrected.