Civics Project column: Can courts really prevent a person from running for President?
Q: Can the courts really prevent a person from running for president?
A: The requirements for election to federal office are set in the U.S. Constitution. Article II describes the requirements to serve as President, such as being a natural-born citizen, at least 35 years of age, and having been a resident of the country for at least 14 years.
As we observed previously in this space, there is no explicit prohibition on individuals with criminal records running for president, and the Constitution does not prohibit anyone based solely on indictments or convictions. Further, no new substantive requirements can be added as the U.S. Supreme Court, in U.S. Term Limits v. Thornton (1995), ruled that states cannot create new qualifications beyond the Constitutional constraints.
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Aside from the technical qualifications like birth, age and residence, the Constitution does have one additional restriction. Section 3 of the 14th Amendment (“The Insurrection Clause”). It bars from office any person who took an oath to support the Constitution and has “engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.” Congress may by a vote of two-thirds of each House remove the prohibition.
The 14th Amendment was passed after the Civil War and was largely aimed at the Confederacy. However, in 1873 Congress passed, with a two-thirds vote, the Amnesty Act, which, incompliance with the Insurrection Clause, eliminated the prohibition for Confederates and Confederate sympathizers.
Since that period, the Insurrection Clause has gotten little use. As insurrection and rebellion are not common, there is not much interpretation of this provision. However, in 1919, Congress cited the 14th Amendment to block Victor Berger from being sworn in as a member of the House. Berger was accused of supporting Germany using editorials during World War I. Berger was eventually allowed to serve after his Espionage Act conviction was reversed by the Supreme Court.
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How this provision works going forward is unclear. There are difficult questions as to what constitutes an insurrection or rebellion and what is necessary to have “engaged” in it. How do we define enemy and what constitutes aid and comfort. We do know that historically, there was no requirement that a person be convicted for this to apply. Section 3 was used to remove individuals linked to the Confederacy during the Civil War and Congress has refused to seat some members using this provision.
Recently, Supreme Court of Colorado barred former President Trump from the Republican primary ballot in that state concluding that “the events at the U.S. Capitol on January 6, 2021, constituted an insurrection.” However, there continues to be significant disagreement over the meaning and application of this prohibition. It will likely fall upon the U.S. Supreme Court to settle the matter.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd. You can read past columns here: https://www.palmbeachpost.com/search/?q=kevin+wagner
This article originally appeared on Palm Beach Post: US Constitution set the rules on removing a presidential candidate
