[Salon] [Friends_of_Bruce] Politico: Biden v. Trump: The Makings of a Shattering Constitutional Crisis

Of possible interest.

Bruce

Politico (February 1, 2022)

Biden vs. Trump: The Makings of a Shattering Constitutional Crisis

January 2025 could make January 2021 seem tame by comparison.

By Bruce Ackerman and Gerald Magliocca

https://www.politico.com/news/magazine/2022/02/01/biden-trump-constitutional-crisis-00003959

Donald Trump is already signaling that he will run for president in 2024. A Biden-Trump rematch risks worsening our country’s already deep divisions. But there’s more to be worried about: The next election will provoke a genuine constitutional crisis, unless decisive steps are taken soon to prevent it.

Section 3 of the 14th Amendment — the Disqualification Clause — expressly bars any person from holding “any office, civil or military, under the United States” if he “engaged in insurrection” against the Constitution after previously swearing to uphold it “as an officer of the United States.” These terms definitely apply to Trump, and some Democrats are exploring the use of Section 3 against him.

The text is framed in exceptionally broad terms — prohibiting service in any of the states as well as the federal government. It does permit a candidate for future office to escape disqualification — but only by obtaining “a vote of two-thirds of each House.” These congressional supermajorities, however, are obviously beyond Trump’s grasp. Which means, once he announces his presidential campaign, it won’t be possible for him to avoid a confrontation with the 14th Amendment. Before he can run for the Republican nomination in the primaries, he must convince each state’s election authorities that Section 3 doesn’t bar him from the White House.

A lawsuit filed in January in North Carolina provides a model for future proceedings against Trump. A group of registered voters have invoked the 14th Amendment to disqualify Rep. Madison Cawthorn from running again for a seat in the House in 2022, based on his support for the January 2021 riot at the U.S. Capitol. They are relying on a provision of state law that authorizes them to raise a “reasonable suspicion” that a would-be candidate is legally unqualified for the office he is seeking. If the voters can convince the state’s election authorities that their “suspicions” are reasonable, the burden of proof will shift to Cawthorn — who must establish, “by a preponderance of the evidence,” that he is eligible. The congressman will have a full and fair opportunity to demonstrate, before an impartial fact-finder, that the charges against him don’t have the necessary support.

Trump’s case is no different — except that he will be facing similar challenges in all 50 states. While not all states will address this issue the way North Carolina does, they all require their election authorities to make an evidence-based decision about whether candidates are eligible to run for a particular office. It isn’t necessary to delve into these complexities, however, to know that once Trump announces his candidacy, his lawyers will be confronting multiple challenges to his qualifications on a nationwide basis.

One thing is clear. It is virtually impossible that all 50 states will come to the same decision. Instead, some election authorities will disqualify him while others will conclude that the facts are insufficiently compelling to justify his exclusion under the 14th Amendment.

This means that in 2023 the nation will be split into two parts. In the “constitutionalist” region, Trump will be disqualified. In the “insurrectionist” region, the electoral authorities will validate him as a legitimate candidate for the Republican nomination.

You can imagine the scene: For the rest of the campaign season, Trump will organize massive rallies in the insurrectionist states while the democratic opposition in these states will respond with counter-demonstrations.Violent confrontations may well result. At the same time, Democrats will mobilize against Trump in the constitutionalist states and Republicans will passionately defend him.

This will dramatically reinforce the polarization dividing Americans. Election Day will escalate these tensions. Trump supporters in constitutionalist states won’t see his name on their ballots. Instead, they will likely see the name of a proxy candidate whom Trump has designated as his stand-in to deprive Biden of his electoral college majority. The stand-in’s name will be proof to Republicans that the vote count has been rigged against Trump from the start. In contrast, Biden’s supporters in insurrectionist states will be outraged by Trump’s defiance of the 14th Amendment.

The constitutional crisis will escalate further once the polls close and each state decides who won the election. Under the Constitution, the states send their electoral college reports directly to the vice president. Once she receives them, Kamala Harris will preside over a Joint Session of Congress on Jan. 6, 2025 — the fourth anniversary of the insurrection — to count the votes.

Once she inspects the ballots, she is likely to find that none of the leading candidates — neither Biden nor Trump nor Trump’s proxy — has won a majority of the electoral votes. At that point, she will confront little-known provisions of the Constitution that will make Mike Pence’s predicament on Jan. 6, 2021, seem modest by comparison. They involve the 12th Amendment, ratified when Thomas Jefferson was in the White House to remedy serious difficulties that arose in his presidential contest with John Adams four years before. Yet the rules ratified two centuries ago will have devastating consequences in 2025.

For starters, the amendment gives the job of choosing the president exclusively to the House while assigning the vice presidency to the Senate. It explicitly provides, moreover, that the House will apply a special rule for selecting a president if no candidate gets an Electoral College majority. When this happens, “the votes shall be taken by states, the representation from each state having one vote.” This gives the single representative from Wyoming (population 600,000) the same voting power as the 50-plus representatives from California (population 40 million). And this rule will certainly be invoked when Harris opens each state’s ballots. She will report that the electoral vote is split three ways, with no candidate receiving the necessary 270 votes.

That won’t be the end of the matter. Democrats will immediately challenge all the votes coming from insurrectionist states, while Republicans will be denouncing the constitutionalist submissions. Simply obtaining a decision from the Joint Session may well be a long, drawn-out affair. After that, the House may need repeated invocations of the “one-state, one vote” rule to choose a president, which could take months. And a Senate minority could filibuster the selection of a vice president indefinitely, especially if Trump’s running mate is also subject to disqualification under Section 3.

And what will happen to the presidency in the meantime? The Presidential Succession Act of 1947, passed at the insistence of Harry Truman, provides the answer. It says that “if, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.”

So, if Joe Biden’s term expires on Jan. 20, 2025 before Congress has designated a clear successor, the speaker becomes acting president until the House acts decisively.

This is a recipe for disaster. America will be governed by a temporary caretaker president while Democrats and Republicans denounce each other’s nominee on Capitol Hill. Not only will this provoke massive street demonstrations by militants on both sides, but it will also invite foreign adversaries to take advantage of American paralysis with aggressive power plays.

Two scenarios are possible if the House eventually chooses a winner. Both are terrible.

Under the first, all House Republicans will vote for Trump. Since Democrats are concentrated in highly populated states, this means that Trump may go to the White House under the special “one-state, one vote” procedure, even if Biden has won a clear majority in the eyes of neutral observers. The House will then degenerate into chaos as Democrats accuse Republicans of stealing the election — provoking bloody battles throughout the country.

The other grim possibility is that Democrats will simply walk out of the House proceedings in protest against the Republicans’ failure to respect the Disqualification Clause. Then Trump and Biden will both present themselves to Chief Justice John Roberts on Jan. 20 to take the oath of office — but so will the speaker of the House. How will Roberts resolve his trilemma?

American history provides no precedent — yet he must choose. But will other government officials accept his choice?

Most importantly, the chair of the Joint Chiefs of Staff must agree with him. Otherwise, the armed forces will recognize a different president as their “commander in chief.” Unless he and Roberts agree, Democratic and Republican loyalists will demonstrate throughout the nation, insisting that their candidate rightfully belongs in the White House. American democracy may never recover from this collapse of the rule of law.

In an ideal world, Congress would enact federal legislation to create a special judicial panel to determine, after a full and fair hearing, whether Trump led an “insurrection” in 2021. Rather than waiting for him to declare his candidacy, the tribunal should be convened immediately and make its decision expeditiously — so that it could be reviewed by the Supreme Court by the end of this year. Even if the panel or the court decided in favor of Trump, this would be far better than to split America in two.

Yet, under real-world conditions, a Senate filibuster will doom any such statute. Only the Supreme Court is in a serious position to intervene in a decisive and timely fashion by granting expedited review in a case, like Cawthorn’s, that could serve as a vehicle for a broad-ranging opinion defining the standards that apply to Trump as well. This will permit a timely challenge to his qualifications to proceed in federal court.

To be sure, this will require the conservatives on the Supreme Court to confront their own moment of truth.

If they live up to their “originalist” creed, they cannot allow Trump to escape scrutiny under the Disqualification Clause. The Framers of the 14th Amendment repeatedly made it clear that Section 3 raised a matter of fundamental principle: “No man who broke his official oath with the nation” can be “again be permitted to hold a position” in the national government — said Rep. John Bingham, the principal framer of the 14th Amendment. These Framers refused to allow leading insurrectionists like Jefferson Davis to escape disqualification. At the very least, Trump should be required to make his case before a judicial tribunal in a fact-based fashion. Indeed, Justice Neil Gorsuch authored an opinion in 2012 that explicitly upheld a state’s “legitimate interest” in excluding presidential primary “candidates who are constitutionally prohibited from assuming office.”

Will he and his fellow conservatives redeem their own commitment to the Framers of the 14th Amendment by taking a case onto their docket that makes it clear that Trump cannot put himself above the Constitution?

Or will the court pretend that nothing extraordinary is happening and allow the country to stumble into the abyss?

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University.

Gerard Magliocca is Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law.