Should President Trump Be Allowed on the 2024 Ballot?
Jan 11, 2024
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In this episode, professors Josh Blackman and Gerard Magliocca dive into the meaning and purpose of the 14th Amendment and the arguments for and against Trump's eligibility to run for a second term. They discuss the constitutional issues surrounding Section 3, the implications for Congress and states, the historical context of insurrection, the decision-making authority for Trump's eligibility, the options if he wins the nomination, and the comparison to Bush v. Gore. Finally, they present their final thoughts on the Supreme Court case.
Section 3 of the 14th Amendment disqualifies individuals who have engaged in an insurrection from holding office, raising the question of President Trump's eligibility to run for a second term.
The court should consider the Brandenburg standard to determine whether January 6th was an insurrection and whether President Trump engaged in it.
The court should examine the original intent of the framers and the purpose of Section 3 to determine whether the President is considered an officer under Section 3.
Deep dives
The meaning and purpose of Section 3 of the 14th Amendment
Section 3 of the 14th Amendment disqualifies individuals who have engaged in an insurrection or rebellion against the United States from holding office. The podcast explores the argument for and against President Trump's eligibility to run for president for a second term under Section 3. One argument is that the president is an officer of the United States and therefore covered by Section 3. Another argument is that enforcement legislation is needed to remove someone from office. The Supreme Court should resolve this case by affirming the Colorado Supreme Court's decision, concluding that President Trump engaged in an insurrection and is disqualified from running for president.
The question of whether January 6th was an insurrection
The podcast discusses how January 6th was deemed an insurrection by the Colorado Supreme Court and the main secretary of state. It explains that insurrection involves the public use of violence to hinder or prevent the execution of the law and that factual findings based on the events of January 6th support the conclusion that President Trump engaged in an insurrection. The court should consider the Brandenburg standard, which protects speech unless it incites imminent violence, and apply it in the context of Section 3. The court should rule definitively on whether January 6th was an insurrection and whether President Trump engaged in it.
The question of whether the President is an Officer of the United States under Section 3
The podcast explores differing opinions on whether the President is considered an officer of the United States and subject to Section 3. One view is that the President is an officer based on interpretations of the Appointments Clause, Commission's Clause, Impeachment Clause, and Oath Clause in the Constitution. Another view is that the President is not an officer based on historical context and the specific language used in the Constitution. The court should examine the original intent of the framers, as well as the purpose of Section 3, to determine whether the President is an officer under Section 3.
The question of whether Section 3 is self-executing
The podcast discusses whether Section 3 of the 14th Amendment is self-executing or if it requires additional legislation to be enforced. It highlights the history of granting waivers under Section 3 before any federal enforcement legislation was in place, suggesting that an act of Congress is not necessary for enforcement. The court should consider whether Section 3 can be enforced without specific legislation and the implications of allowing each state to determine its own enforcement procedures.
The potential implications and consequences of the court's decision
The podcast addresses the potential implications of the court's decision on President Trump's eligibility to run for president. It raises concerns about the chaos and instability that could arise if the court does not reach a definitive ruling and instead defers the decision to the joint session of Congress or waits until after the election. The court should resolve the case definitively to avoid a constitutional crisis and provide clarity on the interpretation and application of Section 3.
The importance of a definitive ruling by the Supreme Court
The podcast emphasizes the need for the Supreme Court to make a definitive ruling on President Trump's eligibility to run for president under Section 3 of the 14th Amendment. It argues that a clear and authoritative resolution is necessary to prevent chaos and uncertainty, especially in the event of another presidential election where the same issues may arise. The court should consider the constitutional principles, the text and original intent of Section 3, and the implications of its decision for the integrity of the electoral process.
Last month, the Colorado Supreme Court and the Maine Secretary of State determined that President Trump “engaged in an insurrection” after taking an oath to uphold the Constitution and that he is therefore disqualified from serving as president under Section 3 of the 14th Amendment. In this episode, professors Josh Blackman of the South Texas College of Law Houston and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law dive into the meaning and purpose of Section 3 of the 14th Amendment and the arguments for and against Trump’s eligibility to run for a second term this fall. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
