Only Congress can remove Trump from the ballot, but Democrats blew their chance
In the days following January 6, Democrats decided to play politics instead of disqualifying Trump
Section 3 of the 14th Amendment bars any former officer of the United States who “engaged in insurrection” from holding office again. Four years ago, a mob of thousands of Trump supporters invaded the U.S. Capitol in an effort to subvert a democratic process and stop a peaceful transition of power. Since January 6, 2021, activists have argued that the 14th Amendment bars Trump from running. The Supreme Court of Colorado and the Maine Secretary of State both accepted that argument and their decision will be argued in front of the Supreme Court in the coming weeks. The January 6th riot fits the definition of an insurrection and it’s clear Trump's actions inspired the rioters to invade, but is this really enough to remove him from the ballot?
That's not a question for me to decide. It’s not a question for the Colorado Supreme Court or the Maine Secretary of State to decide either. It’s not something even the Supreme Court should decide. So, who then can enforce Section 3? Section 5 gives us the answer:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Further, the last sentence of Section 3 itself says “Congress may by a vote of two-thirds of each House, remove such disability.” The writers of the 14th Amendment were clear: Congress is the arbiter of this amendment.
The 14th Amendment was written at a time of Congressional empowerment in the wake of the Civil War. Following the death of President Lincoln, the Radical Republicans in Congress took charge of Reconstruction, leading the nation in its reunification. Who then would the Congressional writers of the amendment want to enforce Section 3? Congress, of course. And until they do, Trump is still eligible, regardless of how guilty anyone thinks he is of insurrection.
The Constitution is clear about who can decide whether or not Trump is eligible under the 14th Amendment's insurrection clause. I hope the Supreme Court makes this obvious ruling.
Removing anyone from the ballot, nonetheless, the current front-runner is an incredibly serious decision that should not be made lightly. Democrats had the opportunity directly following January 6th to remove President Trump's eligibility. Majorities in both Houses (including a handful of Republicans) voted that Trump “incited an insurrection” in the former president's second impeachment. Nancy Pelosi and other top Democrats refused to put a vote up to disqualify Trump under Section 3 (which even at the time I argued they should have), in favor of pursuing a pointless political spectacle, moving to impeach and remove a president who had already left office. Democrats had the opportunity to remove Trump's eligibility in 2021 when many Congressional Republicans were outraged at Trump's actions and Americans disapproved of Trump more than they had at any other point. But instead they decided to play politics.
At this point removing Trump would further injure our democracy. There are too many uncertainties and disagreements about January 6th and the 14th Amendment to boot Trump for his actions. Removing someone from the ballot should be a high bar. The writers of the amendment did so following a rebellion that killed hundreds of thousands of Americans and tore the country in two. Did January 6th have the same effect?
January 6 was an attack on democracy, and Trump's role in it was shameful, but Democrats flubbed their opportunity to disqualify him, and now four years later, public opinion is more split and the effect of January 6 is debated. Removing someone from the ballot should be more than a 51-49 decision, because if it's not, Republicans will use the same tactic to remove a candidate they don’t like, regardless of how unserious their allegations are.
Four years after our democracy was attacked, we continue to descend into a political environment that chips away at the fundamental values that once defined it.