As the Supreme Court on Monday, October 2, 2023, declined without comment to hear a Texas Republican’s challenge of Donald Trump’s qualification to run for the presidency under Section 3 of the 14th Amendment, the issue remains far from settled.
In a news publication by The Messenger’s Alton Frye, a former Senate staff director and President of the Council on Foreign Relations on Saturday, October 7, several other challenges and lawsuits are in progress across the nation, indicating that the matter is not likely to disappear soon.
While the Supreme Court serves as the ultimate arbiter of constitutional interpretation, Congress has the authority to interpret the Constitution in specific circumstances and base its actions on those interpretations.
Typically, courts refrain from intervening in political questions that fall within the purview of legislative and executive branches. When it comes to challenges regarding Trump’s eligibility for the presidential ballot in 2024 based on the 14th Amendment, courts may choose to follow this path.
Notably, a strong Senate majority, 57-43, affirmed in February 2021 that Trump was guilty of “incitement of insurrection” during the Capitol riot on January 6th. According to Section 3 of the 14th Amendment, this would disqualify him from holding further office.
Although the Senate fell short of the two-thirds majority required to remove an incumbent from office, it did convey a clear, substantial majority that supported the political verdict of Trump’s guilt.
If state officials or courts reach a similar conclusion, the burden would shift to those seeking a supermajority in both the House and Senate to rescind any 14th Amendment disqualification, as outlined in Section 3.
According to Alton Frye, Judges should acknowledge that the Senate already settled this political question through its February 13, 2021 vote on Trump’s second impeachment.
While the vote didn’t reach the two-thirds threshold needed for removal, 57 senators approved language explicitly convicting Trump of incitement of insurrection and disqualifying him from any further office. These were the exact elements of the House impeachment.
Although the minority of 43 Republican senators who opposed Trump’s conviction had varied views, it’s worth noting that the Senate’s majority expressed itself on both Trump’s guilt and disqualification.
Presently, the Senate includes a majority of members who, by finding Trump guilty in 2021, have already judged him as disqualified from future office.
To underscore this awareness, the Senate could pass a resolution reaffirming its verdict on the former president, stating that removal of such a disqualification would require a two-thirds vote in both houses of Congress, as per the 14th Amendment.
While there are risks associated with such a resolution, prudent legislators will weigh these carefully. In the end, reaffirming the Senate’s prior findings regarding Trump is essential to protecting the Senate’s institutional power and informing forthcoming actions on various fronts, including safeguarding electoral integrity.
This would provide judges with clarity regarding the Senate’s stance on Trump’s disqualification and the unlikelihood of a two-thirds majority in the Senate to remove that disqualification.
