Currents

• Citation: Vol. 93 No. 1 Pg. 12
• Publication year: 2024
• Pages: 12

constitutional currents 93 J. Kan. Bar Assn 1, 12 (2024) Kansas Bar Journal February 2024

The Disqualification Clause and the 2024 Presidential Election

By Richard E. Levy J.B. Smith Distinguished Professor of Constitutional Law, University of Kansas School of Law

This is the first in a series of regular contributions to the Kansas Bar Journal on current constitutional issues of interest to attorneys in the state. My purpose is to provide context and information to help readers better understand the issues, rather than to offer an opinion on how those issues should be resolved.

Perhaps the most consequential constitutional question of our time is whether former President Donald J. Trump is disqualified from future office under the "Disqualification Clause" (or "Insurrection Clause") of the 14th Amendment.^[1]The clause provides that "[n]o person shall ... hold any office, civil or military, under the United States .. who, having previously taken an oath . as an officer of the United States, . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . ."

The issue emerged as a matter of national concern when prominent voices, including highly respected conservative academics and judges,^[2] argued that Trump's actions in the aftermath of the 2020 elections, particularly in relation to the events of Jan. 6, 2021, amount to an insurrection and that Trump is therefore disqualified from becoming president. They argued further that the Disqualification Clause is selfexecuting, such that state-level election officials have a duty to prevent Trump's name from appearing on the ballot.^[3]

Although these issues have yet to reach Kansas courts, it has led to high profile and controversial judicial and administrative decisions in other states.^[4] At the time of this writing, the results are mixed.^[5] Although some courts have declined to remove Trump from the primary ballot, they have typically done so on procedural or jurisdictional grounds without addressing the substantive issue on the merits.^[6] The Colorado Supreme Court^[7] and the Maine Secretary of State,^[8]however, have both ruled that Trump is ineligible to appear on the ballot for the Republican primary because he has been disqualified under the clause.

It would come as no surprise if a similar lawsuit were to be filed in Kansas. Such a suit would present a number of very difficult legal and practical issues. My goal in this column is to provide context for readers to assess those issues.

Does the Disqualification Clause Apply to Trump?

One question is whether the Disqualification Clause applies at all to Trump. The provision was originally adopted to disqualify supporters of the Confederacy during the Civil War, but it seems reasonably clear that it is not confined to those events, insofar as it is written in general terms. Likewise, although Congress eventually enacted broad legislation removing the disqualification for participants in the Civil War, that statute does not apply prospectively to those who might engage in future insurrections or rebellions.^[9]

Nonetheless, it is unclear whether the Disqualification Clause disqualifies people who have engaged in insurrection or rebellion from holding the office of president or applies to presidents who engaged in insurrection or rebellions after taking their oath.^[10] The clause does not explicitly list the President among the offices for which a participant in insurrection or rebellion is disqualified, although it does identify other offices by title, including the office of "elector of President." Similarly, the president is not explicitly listed among those whose participation in an insurrection or rebellion is disqualifying, although the clause identifies other offices by title. Of course, the president would arguably be encompassed by the terms "any office .. under the United States" and "officer of the United States."^[11]

Another wrinkle is that the Disqualification Clause refers to persons who had taken an oath to "support" the Constitution, but the presidential oath — as specified in Article II, Section 1 — is to "preserve, protect, and defend" the Constitution. One might reasonably argue that the more general phrase "support the Constitution" would encompass the president's oath to "preserve, protect, and defend the Constitution." Nonetheless, the difference in language might support the inference that the framers of the Disqualification Clause excluded presidents from its scope.

At bottom, a close textual reading would arguably exclude the president from the scope of the Disqualification Clause. There is also a plausible federalism-based argument against allowing individual states to disqualify candidates for national office.^[12]At the same time, it is hard to imagine that the framers of the clause chose not to disqualify a president who engaged in a rebellion against the Constitution or to permit a person who had engaged in a rebellion against the Constitution to serve as president.

In the Colorado case, the trial court judge concluded that Trump engaged in insurrection, but that the clause did not apply to presidents.^[13] The Colorado Supreme Court, however, concluded that the Disqualification Clause does apply to Trump because the president is an officer of the United States and that the presidential oath is an oath to support the Constitution.^[14]

Did Trump Engage in Insurrection?

Assuming that § 3 does apply to presidents, a critical issue is whether Trump "engaged in insurrection or rebellion."^[15]This issue raises both an interpretive question and a factual question. The interpretive question is what it means to "engage in rebellion or insurrection." The factual question is whether Trump's actions rise to the level of engaging in an insurrection or rebellion.

As a general matter, the ordinary meaning of insurrection and rebellion are reasonably clear. They both involve the use of force against political or civil authority.^[16] A rebellion involves a more sustained and organized use of force than an insurrection, which is the broader term.^[17] Thus, most discussions of this issue in connection with the events of Jan. 6 focus on whether it rises to the level of an insurrection.

The answer to that question may depend on one's views about what actually happened, which is of course hotly contested in our polarized times. Nonetheless, courts in criminal prosecutions of participants in the violence at the Capitol apparently consider those events to be an insurrection.^[18]

Assuming that there was an insurrection at the capitol on Jan. 6, the question remains whether Trump "engaged" in it. He was not physically present at the Capitol, but there is evidence that might support the conclusion that he planned, orchestrated, and endorsed the events as part of a larger effort to disrupt the counting of electoral votes.^[19]

To this point, the Colorado Supreme Court and the Maine Secretary of State are the only official entities to have addressed this question on the merits in the context of a Disqualification Clause challenge to Trump's appearance on the ballot, and both have concluded that he did engage...