Gerard Magliocca is a law professor at University of Indiana, and the author of Founding Son - about John Bingham - principal drafter of the fourteenth Amendment.'
Many Americans are convinced that the disqualification of Donald Trump from Colorado’s primary ballot is a terrible idea and want the Supreme Court — which agreed on Friday to take up this question — to find a way to let the former president run. Mr. Trump’s supporters are eager to vote for him and argue that his exclusion from the election would be anti-democratic. Some of Mr. Trump’s opponents are just as eager to see him thrown in prison but believe that throwing him off the ballot would set a more dangerous precedent.
What unites these two sides is their unwillingness to ask Congress to exempt Mr. Trump from disqualification or admit that they want him to receive special treatment.
Unlike other constitutional provisions, Section 3 of the 14th Amendment draws a sharp line between law and politics. The first part of Section 3 is a legal command about who cannot hold office that focuses primarily on individual conduct and does not require congressional action. But the second part says that “Congress may by a vote of two-thirds of each House remove” a disqualification for any reason.
The framers of the 14th Amendment deliberately gave Congress — not the president or the Supreme Court — the power to grant a Section 3 waiver on public policy grounds. Congress’s amnesty authority for disqualification from office is the equivalent of executive clemency in criminal cases, which can be exercised in the interests of justice or for the common good.
What unites these two sides is their unwillingness to ask Congress to exempt Mr. Trump from disqualification or admit that they want him to receive special treatment.
Unlike other constitutional provisions, Section 3 of the 14th Amendment draws a sharp line between law and politics. The first part of Section 3 is a legal command about who cannot hold office that focuses primarily on individual conduct and does not require congressional action. But the second part says that “Congress may by a vote of two-thirds of each House remove” a disqualification for any reason.
The framers of the 14th Amendment deliberately gave Congress — not the president or the Supreme Court — the power to grant a Section 3 waiver on public policy grounds. Congress’s amnesty authority for disqualification from office is the equivalent of executive clemency in criminal cases, which can be exercised in the interests of justice or for the common good.
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