Congress is free to express its collective view of Section Three as applied to Trump, though 60 votes would be required in the Senate to overcome a filibuster. But Congress does not need to adopt such a concurrent resolution for Trump to be found ineligible by a court.
With the Senate’s acquittal of former President Trump, the focus now turns to whether Section Three of the Fourteenth Amendment prohibits him from serving as President again. Until January 6th, Section Three was perhaps the most obscure part of the Constitution. The text states, in part: No person shall be a Senator or Representative in Congress, ...
Congress could, of course, choose “beyond a reasonable doubt” as the standard of proof in a Section Three action, but a standard like “clear and convincing evidence” would adequately protect the liberty interests of anyone sued as ineligible.
Section Three was ratified to exclude former civil officials and military officers who joined the Confederacy from serving in office unless Congress (by a two-thirds vote in each House) extended a waiver.
First, a concurrent resolution of Congress declaring that Trump is ineligible does not make him ineligible. A disqualification from office imposed after an impeachment conviction is final. A concurrent resolution on Section Three would instead be non-binding and subject to judicial review.
This characterization, reinforced by the article of impeachment adopted by the House of Representatives that expressly invoked Section Three, strongly suggests that anyone who “shall have engaged” in that insurrection after having sworn an oath to protect the Constitution is now ineligible to serve .
Nevertheless, Congress should take action to enforce Section Three against anyone engaged in the January 6th insurrection. There is currently no federal statutory authority to enforce Section Three, and if this deficiency is not addressed many problems will follow.
Chile: New Constitutional Amendment Imposes Term Limits for Certain Public Officials. 2020. Web Page. https://www.loc.gov/item/global-legal-monitor/2020-07-29/chile-new-constitutional-amendment-imposes-term-limits-for-certain-public-officials/.
Chile: New Constitutional Amendment Imposes Term Limits for Certain Public Officials. 2020. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2020-07-29/chile-new-constitutional-amendment-imposes-term-limits-for-certain-public-officials/>.
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