Weekend Reading: The Overlooked Constitutional Provision That Prevents Congress From Disqualifying Trump

Most of you probably know how the logic goes by now, but in case this is your first time dealing with the issue, allow me to explain. Section 3 of the Fourteenth Amendment says the following:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

I summarized that provision previously as follows:

So, if you have previously taken the oath of office for certain offices (and it is not clear that the presidency counts), and you commit insurrection (more or less), you cannot take various offices in the future (which also might not include the presidency), unless Congress removes the disability by a vote of two-thirds of both houses.

Now, I Fisked that terrible column the other day, but when I was working on my piece about Sean Trende’s proposal for a constitutional amendment, I ran across something I had never noticed in the Constitution before. I mean, how can I say this? While I am familiar with every part of the Constitution, sometimes you can look at the same text twenty times and on the twenty-first time, you suddenly see something you never noticed before and you realize it changes everything. This is one of those cases.

Yes, that means that I am admitting that I missed something in all my previous posts on the disqualification issue, but I don’t feel too bad, because so did the Supreme Court. And so did Trump’s lawyers. But, when you look at this amendment in context, you realize it proves the Congress cannot refuse to certify Trump is president even if they think he is disqualified from serving as president.

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What am I talking about?

I am talking about the Twentieth Amendment, often called the ‘Lame Duck’ amendment. What does it say? Well, let’s cut and paste the whole thing:

Section 1

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

So, like the Christmas song goes … do you see what I see?

Most of it is kind of mundane. If your eyes glaze over, I'll understand. Section 1 changes when the presidential and congressional terms start. It used to take much longer for the President and the new Congress to take office, because communication and travel was much slower in the eighteenth century when these rules were first written. It also has the effect of reducing how long it is before a lame duck leaves office, something everyone who is saying ‘January 20 can’t come soon enough’ right now can appreciate. Imagine if we had to wait until March 4, as we used to? Section 2 deals with Congress going into session. Section 5 deals with when this amendment takes effect, and Section 6 sets up rules for ratifying this amendment. 

That leaves Sections 3 and 4. And even then, much of it doesn’t seem very important to this discussion. They deal with what happens if the President-elect dies before he can take office, and it is a prudent idea to address it, but hopefully it won’t be relevant this time around. But then there is this:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified[.]

So, what this provision says to me is that even if a person is not currently qualified to be president they can still run and be declared the winner, even if he or she can’t hold the office. As you might recall, there aren’t too many qualifications to be president. Most of them are found in the original Constitution:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

I will ignore the bit about being a citizen at the time of the adoption of the Constitution, because that has been irrelevant for well over a century. As of right now, a person has to be the following to be president:

1. A natural born citizen,

2. At least 35 years old,

3. A resident of the United States for at least 14 years,

4. Not disqualified under Section 3 of the Fourteenth Amendment, and

5. Not disqualified because the term limits set in the Twenty-Second Amendment.

Of course, that fifth requirement didn’t come into play until later, but what the Twentieth Amendment specifically contemplates is the possibility that a person might be elected president who is not qualified to be president, but he or she might become qualified later.

Like let’s take the age requirement. Imagine that we decided to elect John Doe as president, but Doe was going to turn thirty-five on January 21, 2025. Well, on January 20, Doe is not qualified to be president. So, what this provision says is that his vice president would have to act as president until Doe turns thirty-five the next day.

I could cook up a similar scenario for residency requirement. And obviously some issues with qualification are never going to go away, short of a constitutional amendment. For instance, George W. Bush and Barrack Obama can never be president again, unless the Constitution is amended. The same can be said for Hung Cao or Elon Musk, because neither of them are naturally born citizens.

But this is crucial: Even when you are dealing with a presidential candidate that is disqualified, Section 3 of the Twentieth Amendment means that Congress isn’t allowed to pretend they didn’t win: They just can’t take office. Let’s say, for instance, that in 2028 Elon Musk runs for president with J.D. Vance as his running mate, and let’s say he wins in the electoral college. This provision says that Congress isn’t supposed to say he didn’t win. It is saying that Vance would have to serve as president until the day comes when Musk can qualify.

And you might be tempted to say ‘But Musk can never qualify—he can’t suddenly become a naturally born citizen.’ But while he can't change his place of birth, he might still eventually qualify. Maybe while running for office, Musk convinces Congress to propose an amendment doing away with the natural born citizenship requirement. But even when things go smoothly, it takes time to ratify an amendment. So, I could see a scenario where Musk wins, is supposed to take office on January 20, 2029, but the amendment repealing the natural born citizenship requirement hasn’t yet been ratified. Indeed, it might a few years into what was supposed to be Musk’s first term before it finally happens, but if such an amendment becomes ratified within those four years, the Twentieth Amendment says that Musk must be sworn in and Vance becomes Vice President.

I mean, that’s not a very likely scenario overall, but the purpose of this was to illustrate how the Twentieth Amendment might work.

And of course, whatever you think of the Fourteenth Amendment as an original matter, this amendment controls how Section 3 of the Fourteenth Amendment is applied. The rule is that if there is a conflict between two laws, the law that is passed more recently wins. And this has been applied to the Constitution. The most obvious example of this is how the Eighteenth Amendment instituting prohibition was repealed by the Twenty-First. So, a Fourteenth Amendment disqualification is treated the same as any other disqualification under the Twentieth.

So, let’s say that Jane Roe was properly disqualified under Section 3 of the Fourteenth Amendment. Let’s say that Roe runs for president with Tim Walz as her running mate and, somehow, she wins the presidency. Then, under the Twentieth Amendment, Roe is still declared the winner of the presidential contest, but she can’t take office unless something happens to remove that disqualification. As you will recall, Congress can remove that disability, the last sentence of Section 3 of the Fourteenth Amendment saying the following:

But Congress may by a vote of two-thirds of each House, remove such disability.

So, the Twentieth Amendment means that Roe would still be the winner of the presidency, but she can’t take office. So, we would be stuck with President Walz (ugh) until and unless Congress could be persuaded to remove the legal disability.

Indeed, the way these two amendments work together, I could imagine this scenario unfolding. Roe wins the presidency in 2028. On January 20, 2029, Roe is supposed to take office but can’t get enough votes to remove the disqualification. So, then Roe campaigns across America to remove any person from Congress who voted against removing the disqualification. The 2030 congressional election rolls around and Roe’s supporters gain just enough seats in Congress that she can get that two-thirds majority in both houses to remove the disqualification and then she can take office in early 2031. Again, that seems pretty unlikely to actually happen, but the Constitution allows her to try to pull that off.

So, how does that change my prior analysis? Well, frankly, it strengthens it.

For instance, when Fisking that column for The Hill, I confronted their claim that…

Third, specific legislation designed for this situation already exists. The Electoral Count Act was first enacted in 1887 and later amended and restated in 2022. That statute provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes.

… and I wrote the following in response:

The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not ‘regularly given.’

So, they go on to claim that since no elector can vote for a disqualified candidate for president, that this means that the results were not lawfully certified or that the votes were not regularly given.

Except the Fourteenth Amendment doesn’t say you can’t vote for a disqualified individual, even as a member of the electoral college. What it says is that the insurrectionist can’t hold office. If Jefferson Davis himself had attempted to run for President of the United States, the Constitution wouldn’t say he can’t even run for federal or state office: He just can’t take office, even if he wins, unless Congress removes that disability. … 

Indeed, it is the fact Congress can make an exception that makes it clear that they can’t disqualify Trump using this procedure. The Constitution specifically imagines a scenario where an insurrectionist wins the presidency, and is allowed to take office anyway, because Congress voted to wave the constitutional rule. I mean, fat chance of this happening for Trump, if he was [properly] determined to be an insurrectionist, but the rule obviously contemplates that possibility.

But when you add in the Twentieth Amendment to the mix, it becomes even more clear that I am right. The Twentieth Amendment makes it clear that Congress has no power to refuse to count the electoral votes of a candidate because Congress thinks he or she is disqualified to be President. That means that even if the Electoral Count Act purports to give Congress this power, it would be unconstitutional. But in truth, the act really doesn’t suggest disqualification as a ground for challenging the validity of vote in the electoral college and the courts will presume against such an interpretation to avoid serious constitutional questions. So even if Trump was actually disqualified, properly (and he hasn’t been), Congress couldn't refuse to count his electoral votes on this basis.

But to be fair, part of my analysis has aged less well. In the same piece, I also wrote:

[The ability to remove the legal disability for insurrection] makes disqualification based on insurrection different than, say, disqualification based on age or not being a naturally born citizen.

But the Twentieth Amendment means that you shouldn’t be treating those disqualifying factors any differently. If a disqualified presidential candidate wins, Congress is not allowed to pretend he or she lost. Instead, that person is merely prevented from taking office unless that disability is removed—if that ever happens.

And as I suggested early on the Supreme Court seems to have ignored this amendment, too, at least in Trump v. Anderson, 144 S. Ct. 662 (2024), the case where the Supreme Court held unanimously that no state could remove a presidential candidate from the ballot to enforce Section 3 of the Fourteenth Amendment, and ruled 5-4 that the only way to enforce that provision was by federal legislation. You can read my deep dive into the case here, but I will note now that there isn’t one single reference to the Twentieth Amendment in that opinion, nor was there any mention in the the briefs of Trump’s legal team, or in the oral argument.

It is mentioned in some of the amicus briefs. Amicus briefs are briefs written by third parties who are not officially part of the case, but believe they have something to contribute to the argument. It also made its way into the briefs of the parties defending the Colorado Supreme Court’s decision to disqualify Trump, responding to these amicus briefs. But other than that, the point is ignored even though the impact on that decision is pretty obvious.

If the Twentieth Amendment imagines a situation where a disqualified person still wins the election, then it only follows that no state can remove a disqualified person from a presidential ballot, even if they can’t be president short of a constitutional amendment, such as Cenk Uygur. Yes, I spent a previous piece explaining why his argument that the natural born citizen requirement was overturned by the Fifth Amendment was ridiculous, and I stand behind that argument. But to the extent that I suggested that Uygur can’t even be on the ballot, I was wrong. No, according to the Twentieth Amendment, he should be free to run for president, he just can’t serve as president, short of a constitutional amendment.

So, the question is … did the Supreme Court just forget about the Twentieth Amendment? Well, that is certainly possible. The (U.S.) Supreme Court wisely moved swiftly to resolve the question of Trump’s qualification to be president, to minimize the effect that it would have on the Republican primaries. I advocated that they do so, and I still think it was the right thing to do. But the problem with quick Supreme Court litigation is that things can get missed. Maybe this was one of them.

Or maybe whoever wrote the Supreme Court opinion in Anderson (as you might recall, there is no official author for the majority opinion) wanted to keep it short. In my analysis of Anderson, I talked about how the opinion might have been made intentionally short in order to make it more likely for people to actually read it. So maybe a reference to the Twentieth Amendment just ended up on the cutting room floor.

Still, either way, as we close in on January 6, 2025, when Congress and Kamala Harris are supposed to certify the results of the election, if Congress thinks it has the power to refuse to count electoral votes for Trump because they think he is disqualified —under the Fourteenth Amendment or for any other reason—the Twentieth Amendment answers that question. Even if they think Trump is disqualified, they still have to declare him the winner.

And naturally, you probably want to keep an eye on Twitchy Monday, to see how Democrats react to having to certify that Trump is indeed the president-elect The Once and Future President™.

And you might want to have some popcorn ready.

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