Opinion columnists for The Hill called on Congress to invoke the 14th Amendment disqualification to block President-elect Donald Trump from taking office next month.
In a column published Thursday, Evan A. Davis and David M. Schulte argued that the 14th amendment enables Congress to object to the electoral votes since they consider Trump, in their words, "an oath-breaking insurrectionist."
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Article 3 of the 14th Amendment bars former officeholders who "engaged in insurrection" or has "given aid or comfort to the enemies" from holding public office again. The restriction can be removed by a two-thirds vote in each House.
Citing this disqualification, Davis, a former editor-in-chief of the Columbia Law Review and Schulte, former editor-in-chief of the Yale Law Journal, claimed that Trump is ineligible to be president. The pair called on Congress to take action when they meet in a joint session to formally count the electoral votes next week.
"Disqualification is based on insurrection against the Constitution and not the government. The evidence of Donald Trump’s engaging in such insurrection is overwhelming," they argued. "The matter has been decided in three separate forums, two of which were fully contested with the active participation of Trump’s counsel."
The authors cited Trump's second impeachment trial, the Jan. 6 Capitol attack probe by Congress and the Colorado Supreme Court's ruling to disqualify the former and incoming president from appearing on the state's ballots in 2024 as reasons for his ineligibility.
"On Jan. 13, 2021, then-President Trump was impeached for ‘incitement of insurrection’…inciting insurrection encompasses ‘engaging in insurrection’ against the Constitution ‘or giving aid and comfort to the enemies thereof,’ the grounds for disqualification specified in Section 3," they claimed.
"The inescapable conclusion of this evidence is that Trump engaged in insurrection against the Constitution."
The Colorado state ruling to kick Trump off the ballot on the basis of the 14th amendment disqualification, which was overturned by the U.S. Supreme Court, found that there was "clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three," Davis and Schulte wrote.
But the decision was appealed and the Supreme Court ruled in Trump's favor, concluding that "states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."
Still, Davis and Schulte griped that the "court did not address the finding that Trump had engaged in insurrection," insisting that the Supreme Court's decision in this case does not preclude Congress from rejecting electoral votes when they convene on January 6.
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"Counting the Electoral College votes is a matter uniquely assigned to Congress by the Constitution. Under well-settled law this fact deprives the Supreme Court of a voice in the matter, because the rejection of the vote on constitutionally specified grounds is a nonreviewable political question," they claimed.
The columnists urged Congress to reject the electoral vote using the Electoral Count Act, which allows for an objection only if "the electors from a state were not lawfully certified or if the vote of one or more electors was not 'regularly given.'"
"A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words ‘not regularly given,'" they claimed. "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."
An objection under the Count Act requires a petition signed by 20 percent of the members of each House.
"If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required 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 might elect Harris as president is obvious," they concluded. "But 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."
The column garnered swift and fierce backlash online, with critics accusing the authors of "endorsing insurrection."
"Oh, look. Democrats want to steal the election and invalidate the will of the American people.Threat to Democracy," Trump campaign spokesman Steven Cheung wrote on X.
"You people are sick," Eric Trump replied.
"Sounds like @thehill is endorsing insurrection. Yes, try blocking the inauguration of a President who won the popular vote and the electoral college. Let’s see how that goes for y’all," anti-woke activist Robby Starbuck said.
This article constitutes a conspiracy to overturn the 2024 election," Senior Counsel at the Article III Project, Will Chamberlain, posted.
Political comedian Tim Young weighed in, "@thehill In fantasy land, democrats at The Hill think they can stop Trump from taking office."
Kevin and Keith Hodge, known as the Hodgetwins, responded, "This is a real insurrection against the will of the people."
"This sounds very insurrection-y," journalist Ian Miles Cheong agreed.
"Warrants were served on people who said far less than this about Biden in 2021," conservative commentator John Cardillo posted.
"This is the kind of nonsense Democrats must reject Trump won in a fair democratic process," former presidential candidate John Delaney wrote. "Democrats should be either working with him when it is in the best interest of the nation or their constituents or standing firm when it's not. Americans don't want pure obstructionists."
