The Supreme Court has decided to grant former President Donald Trump and all other insurrectionists running for federal office amnesty, allowing Trump to become president despite being disqualified by lower courts for engaging in an insurrection on Jan. 6. But Section 3 of the 14th Amendment only authorizes Congress with a two-thirds vote, not the Supreme Court, to grant such an amnesty.
The court is aware of this, but convinced itself and hopes to convince the public that it did something else.
The court held that states may not disqualify presidential candidates from appearing on the ballot for participating in an insurrection. The states may disqualify presidential candidates who lack other constitutional qualifications for becoming president — U.S. citizenship, minimum age and 14 years of residence — but, the court said, the states cannot enforce the most important constitutional qualification of all.
This amounts to an amnesty grant because current law contains no other mechanism to enforce the requirement that “no person shall . . . hold” a federal office who swore an oath to support the Constitution and then defied it by engaging in insurrection. Disabling state law enforcing the disqualification of insurrectionists does exactly what any other amnesty does, it leaves the law on the books but forbids its enforcement.
The justices evidently failed to ask themselves this simple question: If Donald Trump wins the presidency in 2024 but loses the election in 2028, are they confident that President Trump would acknowledge his defeat and peaceably leave office?
The 14th Amendment’s creators enacted Section 3 because they feared repeated insurrection by those who had solemnly sworn to support the Constitution and then rose against it and assumed positions of trust in the government of the United States again.
Giving credence to the constitutional judgment lying behind Section 3 required the justices to recognize that President Trump may well repeat his defiance of the oath of office. Because the peaceful transfer of power constitutes the essence of democracy, the justices’ failure to enforce the agreed-upon public meaning of Section 3’s text risks the end of American democratic rule.
Indeed, what democracy has survived the selection of a leader who stokes violence as President Trump does? Section 3 allows only Congress, by a two-thirds vote, not the Supreme Court, to put our Constitution at risk in this way.
Saying that state law is disabled until Congress enacts an enforcement statute helps the court pretend that it is not granting Trump amnesty. But creating a constitutional default rule disfavoring enforcement amounts to an amnesty grant just the same. It empowers a majority of Congress to, in effect, grant amnesty by opposing the enactment of an enforcement statute. However, Section 3 does not authorize a mere majority of Congress to allow oath-defying officers to get back in power. Amnesty requires a two-thirds vote.
The Supreme Court’s opinion contradicts the 14th Amendment and the clear intent of its drafters. The court expressed concern that allowing states to enforce Section 3 could result in differing views on whether a particular person engaged in insurrection. But that is a less serious constitutional concern than subjecting the Constitution to the dangers that come with the court’s amnesty. The court could have solved that issue by simply ordering Trump off the ballot in all 50 states.
It’s also exceedingly unlikely that any sitting judge would reach a different conclusion than the Colorado courts reached after a trial. The evidence was so overwhelming that Trump’s counsel did not squarely challenge the factual findings. Nor would a federal statute necessarily eliminate the possibility of different outcomes in federal courts. While the court’s concern is understandable, that is not a sufficient basis to disregard the Constitution’s plain command that an individual shall not “hold any office” if they break an oath of office to engage in insurrection.
Since Congress has not granted amnesty to Trump, the court’s obligation under the Constitution was clear. It was required to, at a minimum, allow states to disqualify Trump.
By making a judgment contravening the clear intent of Section 3, the court may gain short-term approval from voters who know nothing about Section 3 or how democracies have perished worldwide. But if Trump becomes president, the court will become infamous for abdicating its duty under the Constitution. And that will be the least of our worries.
David Driesen is a university professor at Syracuse University and the author of “The Specter of Dictatorship: Judicial Enabling of Presidential Power” (Stanford University Press 2021). These views are the author’s and not necessarily those of Syracuse University.
The Supreme Court granted Trump amnesty it has no power to give
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13.03.2024
The Supreme Court has decided to grant former President Donald Trump and all other insurrectionists running for federal office amnesty, allowing Trump to become president despite being disqualified by lower courts for engaging in an insurrection on Jan. 6. But Section 3 of the 14th Amendment only authorizes Congress with a two-thirds vote, not the Supreme Court, to grant such an amnesty.
The court is aware of this, but convinced itself and hopes to convince the public that it did something else.
The court held that states may not disqualify presidential candidates from appearing on the ballot for participating in an insurrection. The states may disqualify presidential candidates who lack other constitutional qualifications for becoming president — U.S. citizenship, minimum age and 14 years of residence — but, the court said, the states cannot enforce the most important constitutional qualification of all.
This amounts to an amnesty grant because current law contains no other mechanism to enforce the requirement that “no person shall . . . hold” a federal office who swore an oath to support the Constitution and then defied it by engaging........
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