Bruce Ackerman and Gerard Magliocca have co-authored a piece for Politico on the chaos that could ensue over efforts to disqualify Trump from becoming president again pursuant to section 3 of the Fourteenth Amendment. I’ve addressed this topic previously for ELB, and in doing so relied upon Professor Magliocca’s key law review article concerning the history of this constitutional provision. For reasons I’ve elaborated, I strongly agree that this issue should be resolved in long before voters cast ballots in the 2024 election.

But I question some of the details that the Politico piece describes. First, the piece is concerned about the possibility of divergent outcomes among the fifty states on whether Trump is entitled to be on the ballot as a presidential candidate. The piece’s main conclusion is to urge the federal judiciary to make sure there is uniformity among all fifty states on this point. I doubt, however, that there is much risk of ultimate state-by-state divergence on this important issue. Assuming Trump declares his candidacy, if any state were to keep him off the ballot, he surely would sue (as Madison Cawthorn already has in a parallel case raising section 3 of the Fourteenth Amendment issues), and I’m confident the U.S. Supreme Court would resolve any conflict among the circuit courts of appeals that might emerge. Multi-front litigation leading to eventual SCOTUS-imposed nationwide unity might indeed be messy, causing some interim political instability and confusion among the public, aggravating already high levels of public distrust in the nation’s electoral procedures. But I’m dubious that the end result would be, as the piece describes it, Trump’s name on the ballot in some states but not on the ballot in others.

Second, and related, I don’t envision the situation in which the joint session of Congress on January 6, 2025 involves a three-way split between the Democratic candidate, Trump, and a Trump stand-in (who was on the ballot instead of Trump in those states where Trump was disqualified). That three-way split is dependent on the kind of divergence that I don’t think will occur. Thus, I believe we can safely discount the risk that the January 6, 2025 becomes problematic in this particular way.

But for different reasons (explained in my previous post) I do think we need to worry about what might transpire on January 6, 2025 regarding an effort to disqualify Trump from serving as president. If the Supreme Court does not permit states to keep Trump off the ballot (a judicial outcome I would anticipate absent additional applicable congressional legislation, a point I’ll address momentarily), and if Trump wins an Electoral College victory, then I would expect Democrats in Congress to attempt to object to Trump’s victory in the joint session of Congress under the Twelfth Amendment, with Democrats arguing that Trump is ineligible to serve on section 3 of the Fourteenth Amendment grounds. I fear that raising this issue in the joint session would provoke a serious crisis, both inside the House chamber and outside the Capitol, where agitated protests would be likely (and potentially far more ominous than on January 6, 2021).

To avoid this problem, I believe Congress has a duty to enact a new statute now that would establish a procedure for litigating in advance Trump’s status under section 3 of the Fourteenth Amendment (in a civil suit the Department of Justice would be authorized to pursue). This statute is necessary because without it, for reasons Professor Magliocca provides in his law review article on the topic, there is a significant risk based on nineteenth-century precedent that the federal judiciary will decline to consider the issue on the merits (thereby all but inviting Congress to consider it in the joint session on January 6, 2025 if Trump is the Electoral College winner). In their Politico essay, Professors Ackerman and Magliocca explicitly support the idea of this new congressional statute. “In an ideal world,” they write, “Congress would enact federal legislation to create a special judicial panel to determine, after a full and fair hearing, whether Trump led an ‘insurrection’ in 2021.” But they consider the enactment of this statute a practical impossibility because of the Senate filibuster.

I would not so quickly abandon the effort to enact this legislation. The need for it is too critical. Also, its relationship to filibuster rules is unique, given the inapplicability of filibusters to joint sessions of Congress under the Twelfth Amendment. Finally, enough Senate Republicans as well as Democrats may come to appreciate the necessity for settling this matter in advance, rather than risking that Congress will be unable to avoid confronting it at the worst of all possible times: two weeks before the inauguration of the new presidential term.

In adopting the statute, Congress does not need to decide Trump’s status under section 3 of the Fourteenth Amendment. All Congress needs to do is to create a statutory mechanism that assures that the merits of this issue can be settled definitively one way or the other at the outset of the 2024 election and not at the very end, at the most destabilizing of moments. Can we not expect the Senate to exercise this minimum level of responsibility on behalf of the Republic’s well-being?