If Democrats in Congress want to make sure that Donald Trump isn’t sworn in as the 47th president of the United States on January 20 of next year, there’s a way they can block his taking office, but they’ll have to act now and invoke a section of the Constitution that was added shortly after the Civil War in 1868 and has never been used before.
That, according to former Ivy League law review editors Evan Davis and David Schulte, is a viable option, and they lay out the process in a fascinating article published by The Hill.
The Insurrection Clause of the U.S. Constitution states, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
As Davis and Schulte explain, that one clause would delay Trump from becoming president until the matter could make its way through the federal courts, which could take months.
“Disqualification is based on insurrection against the Constitution and not the government. The evidence of Donald Trump’s engaging in such insurrection is overwhelming. The matter has been decided in three separate forums, two of which were fully contested with the active participation of Trump’s counsel,” they note, citing Trump’s second impeachment trial and the bipartisan House January 6 Committee.
Even though the Supreme Court has ruled on efforts to disqualify Trump for insurrection, all they decided was the proper venue hadn’t been chosen to keep a candidate off the presidential ticket. Federal legislation was necessary, the justices explained.
Federal legislation now exists in the form of the Electoral Count Act, which was updated in 2022. The updated Electoral Count Act says electors cannot be counted if one or more of them was not “regularly given,” which leads the authors to explain, “A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words ‘not regularly given.’ Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years residency in the United States.”
Granted, Congressional Republicans will never agree to go along with their Democratic colleagues and disqualify Trump, but that doesn’t mean Democrats should refuse to issue a challenge.
“Democrats need to take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed. No less is required by their oath to support and defend the Constitution.”
