Two legal scholars have suggested Democrats should block President-elect Donald Trump from taking office, even as party leaders reject any such efforts and MAGA Republicans decry the very idea.
The argument both men put forward relies on the 14th Amendment, which says that “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … 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.”
The authors called evidence of Trump’s involvement in the insurrection “overwhelming” and, therefore, disqualifying.
“Congress will do what it does, and it has the power under section 3 to free Trump of the disability of disqualification by reason of insurrection. The politics are intense though the law is clear. Should Trump be certified, unless the disability is relieved his administration will labor under a cloud of illegitimacy.”
The authors noted that the Supreme Court‘s decision on Colorado’s plan to leave Trump off the primary ballot, which the court rejected, would likely be the main defense that critics of their plan would use.
The Colorado Supreme Court had determined that there was “clear and convincing evidence that President Trump engaged in insurrection as those terms are used” in the 14th Amendment, but the U.S. Supreme Court determined that states lack the power to disqualify candidates for federal office.
The authors argued the decision’s relation to Trump’s certification “lacks merit” for, mainly, the fact that the power of certification of Electoral College votes “is uniquely assigned to Congress by the Constitution.” Additionally, they note the U.S. Supreme Court decision “did not address the finding that Trump had engaged in insurrection.”
“The rejection of the vote on constitutionally specified grounds is a nonreviewable political question,” Davis and Schulte wrote in their op-ed.
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