How to Implement Section 3 Disqualification, with Ned Foley and Derek Muller

The Lawfare Podcast

The Lawfare Institute

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4.7 • 6.4K Ratings

🗓️ 6 September 2023

⏱️ 60 minutes

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Summary

As the 2024 presidential election inches closer, legal scholars are hotly debating whether former President Trump’s actions in relation to Jan. 6 might have disqualified him (and many others) from public office under Section 3 of the 14th Amendment. But far less attention has been given to how precisely this disqualification should be implemented so as to bring the ultimate issue to the Supreme Court for decision—preferably before the 2024 election is under way.

To discuss these issues, Lawfare Senior Editor Scott R. Anderson recently sat down with two leading election law experts and friends of the podcast: Professor Ned Foley from The Ohio State University’s Moritz College of Law; and Professor Derek Muller of the University of Notre Dame Law School. They discussed how Section 3 might be interpreted, the ways it might be implemented in relation to former President Trump, and what other avenues for enforcement might apply against other people facing a similar possibility of disqualification.

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0:49.3	on the go news. That's amazon.co.uk slash on the go news and listen to your
0:54.7	favorite podcasts on the go. The Supreme Court could invent something like a
1:05.7	clear statement rule or an analogy to the so-called major questions doctrine. You
1:10.9	know, the court is capable of deflecting hard issues if they think that people
1:17.1	haven't sort of dotted their eyes and crossed their teeth in terms of forcing
1:21.2	the federal judiciary to decide a, you know, really momentous constitutional
1:25.3	question. So you could imagine the Supreme Court saying, well, theoretically state
1:30.4	legislative power might exist in this context without prior congressional
1:34.5	approval, but we're not going to go down that road until a state legislature has
1:37.8	made it on ambiguous that they want to assert that kind of power. So that's why I
1:41.8	think a state legislature and it really only takes one to get it to the US
1:46.7	Supreme Court, but if one state legislature said, you know, we really want to do
1:51.3	this. I think that's the best way to tee up a decision in advance of the election.
1:56.3	I'm Scott Anderson and this is the Law Fair Podcast for September 6, 2023. At
2:03.0	the 2024 presidential election inches closer, legal scholars are hotly debating
	...

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