Two conservative legal scholars, members of the Federalist Society in good standing, have just published an audacious argument: that Donald Trump is constitutionally prohibited from running for president, and that state election officials have not only the authority but the legal obligation to prevent his name from appearing on the ballot.
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The legal paper, authored by University of Chicago professor William Baude and University of St. Thomas professor Michael Stokes Paulsen, centers on Section 3 of the 14th Amendment — a provision that limits people from returning to public office if they have since “engaged in insurrection or rebellion” or “given aid or comfort” to those who have. Baude and Paulsen argue that this clearly covers Trump’s behavior between November 2020 and January 2021.
“The most politically explosive application of Section Three to the events of January 6, is at the same time the most straightforward,” Baude and Paulsen write. “Former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the attempted overthrow of the 2020 election and the events leading to the January 6 attack.”
The consequences of this argument are astonishing. On Baude and Paulsen’s read, Section 3 is “self-executing” — meaning it does not require an act of Congress to enter force and binds those public officials in the position to act on its dictates. Basically, if a single official anywhere in the US electoral system finds their constitutional analysis compelling, Baude and Paulsen urge them to act on it.
“No official should shrink from these duties. It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three,” they write.
As a matter of law, I find their arguments quite compelling. If you look at Section 3 in light of the historical evidence and how restrictions on eligibility for office work elsewhere in the Constitution, it’s hard to disagree with Baude and Paulen’s application of its text to Trump.
But as a matter of politics, encouraging state election officials to go rogue and kick Trump off the ballot is a recipe for disaster. And that disconnect, between what the law says and the practical barriers to implementing it, speaks to some deep problems in American democracy that led to Trump’s insurrection in the first place.
The (very strong) argument that Trump is ineligible for office
Baude and Paulsen’s paper, set to be published in the University of Pennsylvania Law Review, focusing on plain-language readings on Section 3 of the 14th Amendment and the way its key terms were used in political discussion around the time of enactment.
To get what they’re trying to do, it’s worth reading the text of Section 3 in full:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Using historical and dictionary sources, Baude and Paulsen establish clear definitions for key terms. “Insurrection” and “rebellion,” in their view, “cover pretty much the entire terrain of large-scale unlawful resistance to government authority.” To have “engaged in” such conduct, they claim, means being “actively involved in the planning or execution of intentional acts of insurrection or rebellion” or “knowingly provided active, meaningful, voluntary, direct support for, material assistance to, or specific encouragement of such actions.”
If this interpretation is correct, then the legal case against Trump is fairly straightforward — all established by facts in public reporting, evidence from the January 6 committee, and the recent federal indictment.
In this well-known story, Trump was “actively involved” in an extralegal scheme to send fake electors to the Congress, and urged the vice president to unlawfully accept these fake electors over the real ones and crown Trump president. In service of his scheme, he provided “direct support for” and “specific encouragement” of the mob that ransacked the Capitol on January 6 in his speech, his tweets, private statements, and refusal to take actions (like calling in the National Guard) that could have stopped the mob.
“The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section Three of the Fourteenth Amendment,” Baude and Paulsen write. “If the public record is accurate, the case is not even close.”
Normally, this kind of argument feels like a purely abstract exercise. Maybe there’s a strong case that Trump running for president is unconstitutional, but who’s actually going to stop him?
The answer, according to Baude and Paulsen, is literally anybody in a legal position to do so.
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