- Since the U.S. Capitol siege, some lawmakers have said Trump should be banned from future office.
- The 14th Amendment may be the last option for legislators to achieve this goal.
- However, lawyers do not agree on how the bill can be applied in the case of Trump.
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In the wake of the Capitol siege, some U.S. lawmakers have called for President Donald Trump, and some of his congressional colleagues, to be removed from office or to never hold office again in the future – and they could appeal to the 14th Amendment. to do It.
The 14th Amendment was adopted in 1868 and is mostly known for granting citizenship rights and equal protection under the law to anyone born or naturalized in the United States, including black people and those who were previously addicted.
The amendment overturned the 1857 Supreme Court ruling, Dred Scott v. Sandford, annulled, which ruled that people of African descent may not be American citizens.
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However, one part of the amendment prevents someone from holding office who, after previously taking an oath to the Constitution, was ‘against rebellion against the USA’.
Originally designed to prevent Confederates from serving in public office, it can now prevent Trump from running again
The intention at the time was to influence the government in the South by banning the Confederacy from serving in the public office after the Civil War. “The idea was that United States officials would not be people who are traitors to the United States,” Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider.
Here is the full text of Section 3 of the 14th Amendment:
“No person shall be a senator or a representative in Congress, or a voter of president and vice-president, or hold any office, civil or military, under the United States or under any state which, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of a legislature of the State, or as an executive or judicial officer of a State, to the Constitution of the United States “Rebellion or rebellion against the same, or the enemies thereof, provide assistance or consolation. But Congress may, by a two-thirds vote of each House, remove such disability.”
There are differing opinions among jurists as to whether the amendment could be used in the Trump case, and, if used, how exactly it would play out.
How it can be used against Trump
One uncertainty is whether the text could apply to the office of the presidency. Although it mentions senators, representatives and voters as positions from which a person can be banned, the presidency is not explicitly named.
“I’m not at all sure if this applies to the president of the United States,” Kalir told Insider, adding that it is unlikely the writers would have nominated the offices, but not the presidency itself if they had intended to apply it.
More likely, he said, the division is meant to apply to senators and offices below it.
There is also uncertainty about exactly what the process would be to call the amendment to remove someone from office.
“It is not clear who should make the decision that the person had revolt or revolt against the United States,” Kalir said.
Some jurists believe that Congress itself can make the call and that they can withhold someone from office by simply passing a law with an absolute majority in both chambers. In this scenario, the process would be relatively simple, as Democrats currently have majorities in the Senate and House.
But Kalir said logic is in direct conflict with another part of the Constitution that effectively withholds Congress as a court of law.
Therefore, some scholars do not believe that Congress alone can use the 14th Amendment to ban someone like Trump from holding office. Instead, in addition to legislation, the process is likely to require litigation as well.
Federal prosecutors are investigating Trump’s role in inciting the uprising on the Capitol, which could theoretically lead to him being convicted in a court of law.
Such a conviction could give Congress the necessary authority to then pass a law that may prevent Trump from holding office on the premise that he was ‘engaged in insurrection or insurrection,’ as the 14th Amendment states.
The amendment was called once in more than a century to keep someone out of office
There are historical precedents, as the amendment was used to prevent someone from taking office, but only once in more than a century.
In 1919, Congress used the 14th Amendment to ban Victor Berger, a Wisconsin socialist and elected official, from joining the House because he was actively opposed to the First World War.
In that case, a special committee met and concluded that Berger was unfit for office. He was then barred by a simple majority in the Senate and House. Therefore, some believe that the precedent of Congress needs only a simple majority.
But the Congress banning anyone from joining their own body is remarkably different, Kalir said.
“To think that the US Congress can prevent someone from becoming president of the United States other than through accusation is big – it’s a big leap.”
Berger’s case was also 102 years ago and since then there has been no use of this division.
Kalir says if called upon today, it could be challenged in court and it could eventually take years to play out.