A recent report published by two members of the Federalist Society has reignited calls for Trump to be disqualified from running for office or holding office under Section 3 of the 14th Amendment. Legally, there is no doubt that Trump should be disqualified from running for office, but a closer read of the Conservative interpretation of how to execute Trump’s disqualification suggests that far right is setting a trap.
The Federalist Society is one of the most longstanding and powerful legal and political institutions of the far right. Billionaires such as Leonard Leo, Charles Koch, Dick & Liz Uihlein, Rebekah Mercer, the Scaife Family and the DeVos Family all have close ties with this institution. The Federalist Society was largely responsible for handing Trump the people, funding and tools necessary to propel the Trump Administration into the juggernaut that it became, and ensured that Trump was able to pack the Supreme Court with far right extremists that also happened to be members and former members. They also provided the Trump Administration with at least two co-conspirators (John Eastman and Jeff Clark) in the attempt to overturn the 2020 election.
They are masters at manipulating the law. Their reliance on deception strategies ensured the Big Lie could sustain multiple efforts to disassemble Democracy after the 2020 election, bolstered the legal narrative the surrounded the Dobbs case, and one of their members, Mark Brnovich, was used to demolish voting rights through the case of Brnovich v the DNC. At every turn, their work promotes the most egregious far-right efforts to an antebellum states-rights based vision of America in the name of originalism.
The Federalist Society cannot be trusted. We cannot take anything they say at face value. Their argument that Trump is disqualified from running for office under Section Three of the Fourteenth Amendment is no different.
The Disqualification Clause can and should be viewed as a method of keeping insurrectionists like Donald Trump off of the ballot. The Democrats themselves have been calling for the use of this clause since 2021. Whether or not Section Three of the Fourteenth Amendment is applicable is not in question. What is in question, though, is how it should be applied. The Federalist Society’s answer is a poison pill.
Lying within the Federalist Society’s Trojan Horse strategy for how to apply the disqualification clause to Donald Trump is an effort to end the federal government’s ability to keep Trump off the ballot and to launch a state-by-state civil war for who can and cannot run for office in 2024. Through their report, they are providing state officials with the legal arguments to implement this strategy and they are giving SCOTUS the fodder needed to uphold it.
What the Federalist Society is actually arguing in their report is that while Congress has the power to apply Fourteenth Amendment Section 3, they can only enforce it through the process of impeachment. That process requires a two-thirds majority vote rather than a simple majority which arguably can and should be applied. According to the report:
“…in general: wherever anyone possesses the constitutional authority or duty to remove others from office for legal reasons, they can and should remove those barred by Section Three. Presidents—and subordinate executive officers acting at the president’s direction—should remove from office executive officers, civil and military, who are constitutionally disqualified by Section Three. Likewise, the House of Representatives should impeach, and the Senate convict and thereby remove from office, civil executive officers who become constitutionally disqualified by Section Three.”
In addition to neutralizing Congress’s ability to disqualify Trump and any future insurrectionist Presidents, the Federalist society is arguing that the states have primary authority to decide who can and who cannot appear on the ballot when it comes to applying Section Three of the Fourteenth Amendment. They go on to claim:
“So, for instance, state or local election boards, and state Secretaries of State, may possess state law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot. Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution— to act consistently with the requirements of the Constitution in the discharge of their duties.”
In this case, not only can states come up with arguments to keep Trump off the ballot, but they would be able to keep Joe Biden, or any other candidate they don’t like for that matter, off of the Presidential ticket if they so choose by applying Section 3 of the 14th Amendment. States would no longer need to battle it out at the polls. State legislators could decide themselves who can appear on the ballot, and ultimately, who can win an election. This could also apply to any seat held by a Democrat.
And as if that wasn’t enough of an infusion of Confederate chaos into out electoral system, the Federalist Society is further arguing that any individual could take to court to claim that they do not need to follow the rules and directives of a legislator by calling for the application of the disqualification clause of the 14the Amendment. The report states:
“Finally and additionally, what happens if all of the above fails? Somebody disqualified by Section Three is given office and nobody removes that person from office. What then? Here too there will often still be additional procedures to enforce Section Three.... A litigant can move to disqualify a judge whose appointment is improper. A regulated entity can challenge the actions of an executive official who holds office improperly. Those who cannot constitutionally hold office cannot constitutionally exercise government power, so the subjects of that power can challenge their acts as ultra vires.”
As we have seen clearly since 2016, lawsuits for the far rights are as much about creating chaos as they are securing a desired legal outcome. The Federalist Society is likely less concerned with the value of allowing everyday citizens faithfully remove insurrectionists from office as they are the vitriol of contesting the authority of every Democrat that holds office.
We need to take pause and think strategically about the best and most Democratic way to keep insurrectionists like Trump and his co-conspirators out of office. And we need to prevent the Federalist Society from advancing their interpretation of Section Three of the Fourteenth Amendment from advancing in the courts. We can’t fall into the trap that the Federalist Society is trying to set.