The Hill’s opinion columnists called on Congress to invoke the 14th Amendment’s disqualification for block President-elect Donald Trump to take office next month.
In a column published on thursday, Evan A. Davis and David M. Schulte argued that the 14th Amendment allows Congress to object to electoral votes since they consider Trump, in their words, “an oath-breaking insurrectionist.”
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Article 3 of the 14th Amendment prohibits former officials who “participated in the insurrection” or who “have given aid or comfort to enemies” from holding public office again. The restriction can be removed by a two-thirds vote of each House.
US President-elect Donald Trump looks on during Turning Point USA’s AmericaFest at the Phoenix Convention Center on December 22, 2024, in Phoenix, Arizona. (Rebecca Noble/Getty Images)
Citing this disqualification, Davis, former editor-in-chief of the Columbia Law Review, and Schulte, former editor-in-chief of the Yale Law Journal, asserted that Trump is ineligible to be president. Both called on Congress to take action when they meet in a joint session to formally count electoral votes next week.
“The disqualification is based on an insurrection against the Constitution and not against the government. The evidence that Donald Trump participated in such an insurrection is overwhelming,” they argued. “The matter was decided in three separate forums, two of which were fully contested with the active participation of Trump’s attorney.”
The authors cited Trump’s second impeachment trial, Congress’ investigation of the Jan. 6 attack on the Capitol, and the The Colorado Supreme Court decision to disqualify the previous and incoming president from appearing on the state’s ballots in 2024 as reasons for their ineligibility.
“On January 13, 2021, then-President Trump was charged with ‘incitement of insurrection’…inciting insurrection encompasses ‘engaging in an insurrection’ against the Constitution ‘or giving aid and comfort to his enemies,'” Reasons for disqualification are specified in Section 3,” they stated.
“The inescapable conclusion of this evidence is that Trump engaged in an insurrection against the Constitution.”
The state of Colorado’s ruling to expel Trump from the ballot based on 14th Amendment disqualification, which was overturned by the U.S. Supreme Court, found that there was “clear and convincing evidence that President Trump participated in an insurrection as those terms are used in Section Three,” Davis and Schulte wrote.
President-elect Trump at AmericaFest in Arizona. (Rick Scooters)
But the decision was appealed and the The Supreme Court ruled in favor of Trumpconcluding that “the states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
Still, Davis and Schulte complained that “the court did not address the finding that Trump had engaged in an insurrection,” insisting that the Supreme Court’s decision in this case does not prevent Congress from rejecting electoral votes when they are meet on January 6.
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“The counting of Electoral College votes is a matter assigned exclusively to Congress by the Constitution. Under well-established law, this fact deprives the Supreme Court of a say in the matter, because rejection of the vote for constitutionally specified reasons is a political issue that cannot be reviewed,” they stated.
The columnists urged Congress to reject the electoral vote using the Electoral Count Act, which allows an objection only if “a state’s electors were not legally certified or if the vote of one or more electors was not ‘regularly given’.”
“A vote for a candidate disqualified by the Constitution is clearly in accordance with the normal use of the words ‘not regularly given,'” they stated. “Disqualification for participating in an insurrection is no different from disqualification based on other constitutional requirements such as age, birthright citizenship, and 14 years of residence in the United States.”
An objection under the Count Act requires a petition signed by 20 percent of the members of each House.
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The dome of the United States Capitol Building is seen from an elevated position in Washington, DC (Fox News Digital)
“If the objection is sustained by a majority vote in each chamber, the vote is not counted and the number of votes needed to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president,” they wrote.
“The unlikelihood of congressional Republicans doing anything that would elect Harris president is obvious,” they concluded. “But Democrats must take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed. Their oath to support and defend the Constitution requires no less.”
The column generated swift and fierce backlash online, with critics accusing the authors of “endorsing insurrection.”
“Oh look. Democrats want to steal the election and override the will of the American people. A threat to democracy,” Trump campaign spokesman Steven Cheung wrote on X.
“You guys are sick,” Eric Trump responded.
“Looks like @thehill endorses the insurrection. Yes, trying to block the inauguration of a president who won the popular vote and the electoral college. Let’s see how everyone does,” said anti-woke activist Robby Starbuck.
“This article constitutes a conspiracy to overturn the 2024 election,” posted Will Chamberlain, senior advisor to the Article III Project.
Political comedian Tim Young chimed in: “@thehill In fantasy land, Democrats on The Hill think they can stop Trump from taking office.”
Kevin and Keith Hodge, known as the Hodgetwins, responded: “This is a true insurrection against the will of the people.”
“This sounds very much like an insurrection,” agreed journalist Ian Miles Cheong.
“Injunctions were issued against people who said much less than this about Biden in 2021,” conservative commentator Juan Cardillo published.
“This is the kind of nonsense Democrats should reject: Trump won in a fair democratic process,” the former presidential candidate said. John Delaney wrote. “Democrats should work with him when it is in the best interest of the nation or his constituents or stand firm when it is not. Americans don’t want pure obstructionists.”
