MARC ELIAS: "Disqualify R House Members by Section 3 of the 14th Amendment from serving in Congress"

[Budi]

@marceelias
"My prediction for 2022: Before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress.

We may even see litigation."



***************

Link to tweet

Good luck on your mission Mr Elias.
You found "the way", now to get 2/3 to do the just thing for their country & our Govt.
It's not an impossible task but it is an honorable one.
Thank you

[elleng]

1. Yes.

[Nevilledog]

2. The 2/3rds pertains to LIFTING a ban pursuant to this statute.

Takes a simple majority to remove them.

[dweller]

3. ☝🏼 THIS ☝🏼

makes it work


✌🏻

[Zeitghost]

8. It takes 2/3

To remove a member of Congress.

[Fiendish Thingy]

32. This is not about expulsion, it's about barring the member from holding future office

If they are barred under this section of the constitution, they can’t be re-elected, or hold future federal elected positions.

[ancianita]

38. The clause, as I've read its interpretations, is about office holders outside of Congress.

This won't happen.

[Zeitghost]

43. I understand that

The post I responded to claimed a simply majority could remove a member of Congress, that is simply not true. To remove or prohibit a person from serving via the 14th amendment would likely require a criminal conviction for insurrection.

[aggiesal]

39. I read it as 2/3rds to override the disability to run for office. ...

50% +1 would disqualify the (R) gang from holding ANY public office.

[Zeitghost]

41. You have the first part correct

It would take a 2/3 vote to allow someone convicted of insurrection to take office. But 50%+1 can not simply declare someone ineligible.

[ancianita]

10. What, exactly is the ban being lifted? And from what statute, since the 14th is not a statute.

Last edited Wed Dec 22, 2021, 01:10 AM - Edit history (1)

Marc Elias is smart, but there's no clear path forward for "disqualifying" congressional members, given the impossibility of enforcing the words of the 14th.

[Nevilledog]

17. Here's some more info on this provision.

The 14th Amendment’s Disqualification Provision and the Events of Jan. 6

https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6


I disagree with you that there's no way to use this....if members of Congress are charged and convicted for their involvement in the insurrection they would no longer be eligible to hold office. I think Marc is hinting at members being charged.

[ancianita]

19. Who will charge and convict members of Congress. Elias has no standing. The 2/3 vote stands.

[Nevilledog]

20. Yeah, he's not talking about doing it himself.

I'm surmising he thinks members are going to be charged.

Oops.....seems like it would be DOJ that charges. I view section 3 as pertaining more to eligibility vs. punishment.

[ancianita]

36. Please source.

[Nevilledog]

42. Read the article I provided.

There's no provision for an individual to sue to get members ejected. Marc doesn't say he's going to sue on behalf of himself or another individual. Considering all the insurrectionists are being prosecuted by the DOJ, why would you think members charged would be prosecuted by another entity? I've seen you say you're an attorney, so I assume you've got the skills to research aspects of Section 3 if you feel you don't have sufficient information to come to the same or different conclusions.


I'm a retired criminal defense attorney (27 years) and I understand it.

[Zeitghost]

44. Nobody is being charged with insurrection

n/t

[Nevilledog]

48. It says insurrection or rebellion.

Doesn't say you have to be charged or convicted of the specific crime of insurrection.


The gray area, as I see it, would be if a member is convicted of ANY crime directly related to the insurrection, if that would be sufficient to render them ineligible to hold office.


I highly recommend taking a look at the article


https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

[Zeitghost]

61. That's a very loose interpretation

Considering nobody has been charged with those crimes related to 1/6. This was written with Confederates in mind, as in whole scale Civil War. No court is going to take that position on such a serious matter, especially when there are other ways to remove a member for misconduct.

[Nevilledog]

74. Guess we'll see.

[ancianita]

51. I did.

Who will he sue on behalf of? Swalwell? The DNC? It's fine that he's won federal cases re state elections at state levels, but we're talking major branches of government, and Elias isn't going to get SCOTUS to rule on how Congress does its due process on a member. A member (or members) not even arrested yet.

I'm a pretty proud Democrat about Elias' past wins. And I think you've read me say many times that I'm NOT a lawyer.

Regardless. If a sitting congress person can be arrested, convicted and jailed, then s/he might be eligible for what Elias intends. But until I see that happen, which is no time soon, and it would have to happen one congress person at a time; and until I see who Elias represents, I don't see him even getting to SCOTUS with this.

Just my layman's opinion.

[pnwmom]

22. The 2/3 can only vote to REMOVE the disability. This will probably end up as a key SCOTUS case.

TU

[ancianita]

35. And the disability is? No one has explicitly said, including Elias.

And why would SCOTUS rule on matters related to Congress or the 14th? Certainly not because we want it to.

How Congress acts toward its members is not a case SCOTUS can take, really. All member composition once in session is internal to Congress. There is no eliminating of a member without a 2/3 vote.

[pnwmom]

52. The disability is as stated in the Article. They are disabled-- that is, unable to hold the office--

unless a 2/3 vote removes that disability.

What is unclear is the process for bringing that about. But usually, in the case of disputes like this, people will bring a lawsuit to a court.

[ancianita]

59. In the OP? Oh, THAT disability. Sounds like an arbitrary imputation of a "condition."

To bring a "disability" about, in court, is the issue? Okay, got it. Thank you.

[pnwmom]

71. The thing to remember is that the Constitution was written hundreds of years ago.

So words, like "disability" were often used differently then. Part of what Courts have to do is interpret meanings because it often isn't clear.

[jaxexpat]

76. My take is that "disability", in this context, is the default removal from.....

office of the congressperson for whom there is proof of action(s) therein proscribed. Then it is logical that the 2/3 majority required to remove said "disability" is the means by which congress can overturn the constitutions' directive thus reinstating the prodigal member. It all makes perfect sense if you hypothesize yourself as a non-insurrectionist member of congress during a legislative coup attempt.

For example:
50% of all congressmembers choose to totally separate themselves from the remainder. Doing so in the form of insurrection, etc. Those members are automatically removed from office. It would be up to the members remaining in congress to pay these removed members no mind in regard to their participation of the duties of congress so long as they remain in rebellion. But all is moot at that point, as the facts are that the government of the union is, in fact, dissolved. However, if it would be convenient and useful for the congress to reinstate some of these members, incrementally restoring the government of the union, they may do so provided 2/3 of the fully instated voting members agree. The 2/3 requirement prevents the likelihood that radicalization, of either side, would win the day. It was, in my opinion, the founder's ploy to allow elasticity to the level of tolerance there would, or could, be for dissention.

I ain't no lawyer neither.

Then again, one must prepare and anticipate the 1/6 requirement that the past is irretrievably lost to all memory and actual events have, therefore, no place in serious contemplation of any mythical past.

[SleeplessinSoCal]

83. Seems to prove why it was so bad that good Republicans abandoned ship of state. n/t

[Fiendish Thingy]

33. That's why he anticipates litigation- it's uncharted territory. Nt

[ancianita]

78. Still. Who would represent against the proven aiders and abettors of insurrection?

If the Jan 6 committee turns over phone call records and other documented evidence on these congress people --

Marjorie Taylor Greene GA
Lauren Boebert CO
Paul Gosar AZ

Mo Brooks AL
Andy Biggs AZ
Madison Cawthorn NC

Matt Gaetz FL
Jim Jordan OH
Louie Gohmert TX

Scott Perry PA
Jody Hice GA
James Lankford OK

Steve Daines MT
John Kennedy LA
Marsha Blackburn TN


Mike Braun IN
Cynthia Lummis WY
Roger Marshall KS
Bill Hagerty TN
Tommy Tuberville AL


Josh Hawley MO
Lindsey Graham SC
Ron Johnson WI
Ted Cruz TX

-- on days before and after the attack, would the Jan 6's own counsel -- Timothy J. Heaphy, Hope Goins and Candyce Phoenix -- send their recommendation for DOJ's charging them and then, what, get the DOJ to interpret them as "disabled" constitutionally? Or would the DOJ represent the United States and charge them for aiding and abetting an insurrection, have them arrested, THEN removed automatically?

It sounds logical but I feel like the Elias argument doesn't really help. And why can't Senate members be disqualified, too, if charged.

[FBaggins]

11. Untrue

A majority could choose to not seat a new representative (though as it is predicted here it would be an incredibly stupid idea to try) but they can’t do it retroactively.

[tritsofme]

81. Powell v. McCormack severely limits the House's ability to refuse to seat

A duly elected member.

[pandr32]

62. Thanks for that clarification

We need to get this done.

[wendyb-NC]

4. Very good

[mahina]

5. This man knows what he's talking about

[RayStar]

6. Hope

Please let this litigation happen.

[FakeNoose]

7. By golly, he's onto something

Suddenly I'm looking forward to the New Year!

[ancianita]

13. What? There's no gainsaying the exact words of the 14th.

[kentuck]

9. Would it be by a simple majority vote to disqualify them?

The Amendment does say that it takes two/thirds of each House to remove the disqualification. But it does not say that they cannot be removed by a simple majority.

[FBaggins]

12. That isn't how the constitution works

Congress doesn’t have default powers “unless the constitution says they don’t”. It’s just the opposite.

And the constitution does describe the threshold for Congress removing a member.

[ancianita]

15. Exactly.

[Fiendish Thingy]

34. But if someone were convicted of insurrection, wouldn't that mean they were ineligible? Nt

[FBaggins]

54. Of course - but the chances of that happening are between zero and none

None of the participants have even been charged with insurrection/sedition/treason - nor is there any indication that they will be. There is no chance that a sitting member of Congress will be convicted of such in the next eleven months.

Just look at how long it takes to try to force someone to testify. That may not even be settled by next November.

[monkeyman1]

14. alrite'y - let's get this off the ground !

[ancianita]

16. The meaning of this amendment is clear by what it says more than any "desired" 'implication.

Elias is dreaming.

Why would SCOTUS rule on how to compose or penalize anyone in Congress. That is Congress' job alone, and another branch can't tell it what to do.

Elias' chances are slim to none.

[FBaggins]

18. Translation - what is and isn't being said here

There’s no chance that Congress is going to take action against elected members - claiming that they are somehow disqualified.

What he’s predicting is that we’ll see it used in campaigns to defeat them next fall.

Not a difficult prediction (the litigation) since he’ll probably be the one filing many of those lawsuits to spark the conversation. But he won’t win any of them (nor likely expect to).

[Volaris]

21. You're not understanding the vote math.

It takes 2/3 of each chamber to approve letting them in, not kicking them out.
If found to have engaged in insurrection, they're AUTOMATICALLY barred from running.

[ancianita]

49. No, you don't understand. No 2/3 vote got them IN. 2/3 is for expulsion.

WHO would prosecute them and under what law (s) while they are sitting in session. With what preponderance of evidence will they be "found" guilty of insurrection.

[lees1975]

23. Members of Congress who have been convicted of crimes

have not requires a two-thirds vote to be removed in previous cases. Do some research. If members of congress are found guilty of insurrection, they are removed, period.

[berni_mccoy]

24. They have to be remove from office before they are disqualified

Act of June 6, 1898, ch. 389, 30 Stat. 432. Legislation by Congress providing for removal was necessary to give effect to the prohibition of § 3, and until removed in pursuance of such legislation persons in office before promulgation of the Fourteenth Amendment continued to exercise their functions lawfully. Griffin’s Case, 11 F. Cas. 7 (C.C.D.Va. 1869) (No. 5815).

From: https://constitution.congress.gov/browse/essay/amdt14-S3-1-1/ALDE_00000848/

[NYC Liberal]

25. They would need to have been found guilty in a court of law before they can be disqualified.

Due process is still a thing. A simple majority of Congress cannot simply declare someone guilty of insurrection and bar them from holding office.

[Cha]

26. Rt TY..

[ecstatic]

27. All of this should have been done immediately after the insurrection

Now the traitors feel entitled to keep their seats.

That said, better late than never. They still need to go--but why do we take so long to act in serious emergencies? Thank God these overly cautious/timid types weren't in power after the Civil War ended. The confederate traitors would not have been kicked out of Congress and things would have played out way differently, although it looks like we're on track to meet the same fate regardless. SMH

[FBaggins]

55. Yeah! We could get the VP to just declare it!

We’ll need to get thousands of people there to the Capitol (maybe with a guillotine?) to make clear that “were the people” insist on the proper outcome.

Please tell me the tag isn’t necessary?

[IronLionZion]

28. My favorite amendment and the GOP's most hated

It's why they always claim Obama, Harris, (and me) were not actually born in the US by imaginary rules of white-only citizenship.

Racists randomly decided that section 1 just doesn't exist. The whole amendment didn't exist until after the Civil War anyway so they pretend it doesn't count.

Section 3 is of course directly targeting elected officials who supported those fine people who have statues all over the south since "we can't erase history". Everyone gets a trophy.

Now is a great time for Pelosi to use Section 5 too: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

[onenote]

30. "Now is a great time for Pelosi to use Section 5"

How would legislation to implement Section 5 get through the Senate?

[Gaugamela]

29. And here's the 1st section of the 14th Amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Everyone is guaranteed due process. All these Republican congress persons would have to be convicted of insurrection in a court of law in order to disqualify them from holding office.

[ancianita]

37. Not while they're sitting congressmen and in session.

[Gaugamela]

40. They would challenge it in court. You could accuse anyone of insurrection.

[ancianita]

46. SCOTUS will NOT rule on a sitting Congress person in session. Elias won't get into court with that.

SCOTUS cannot rule on matters of Congress. Or members of Congress. Only on the laws Congress passes and the Constitution.

Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress may be removed from office before the normal expiration of his or her constitutional term by an “expulsion” from the Senate (if a Senator) or from the House of Representatives (if a Representative) upon a formal vote on a resolution agreed to by two-thirds of the Members of that body present and voting. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position.

https://www.everycrsreport.com/reports/RL30016.html

Whether Congress can by a majority vote exclude a sitting member on Section 3 grounds is doubtful. The issue turns on whether Section 3 is viewed as an eligibility requirement (comparable to age or citizenship) or as a punishment. Under the Supreme Court’s decision in Powell v. McCormack, eligibility requirements permit exclusion by a majority vote, while all other grounds must be addressed through expulsion and a two-thirds vote. The Supreme Court expressly declined in Powell to decide which of these categories applied to Section 3. On balance, I believe that the Court would hold that Section 3 may be enforced against a sitting member of Congress only through expulsion, largely because the two-thirds requirement for expulsion is an important safeguard against partisan abuses.

https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

[Gaugamela]

73. Thank you for your response, and I appreciate that you know more about this than I do.

I'm not a lawyer.

My post was in regards to the OP where Marc Elias (who I am sure also knows more about this than I do) states that we will be having a serious discussion about expelling certain members of Congress before the midterm. Obviously, the constitution allows for expulsion by 2/3 vote, but we don't have that, so the only "serious discussion" would be whether a simple majority vote would suffice. That's what I was expressing doubt about. If SCOTUS doesn't have provenance to rule on the constitutionality of Congress enforcing 14th Amendment Section 3 with a simple majority, then I'd say we're in serious trouble.

Imagine, for the sake of argument, that the Republicans take back the House in the midterms. They pass a resolution stating that a simple majority is needed to enforce Section 3. They then pass a resolution stating that the BLM movement is an act of insurrection, and proceed to vote certain members of the squad guilty of complicity and expel them from Congress. Who is to stop them?

Or they could get more ambitious and follow Trump's lead by voting that the Nov. 3, 2020 election was an attempted insurrection, and expel any sitting member of the House who voted to certify the electors on January 6th.

The Democrats are unlikely to go there, but the move would be straight out of the fascist playbook, and I can easily imagine the Republicans doing it.

[BlueIdaho]

31. Throw the bums out! nt.

[krawhitham]

45. The 2/3 is to allow them to stay, but they would still 1st need to be convicted of insurrection

in a court of law

[2naSalit]

47. I suggested this a year ago.

Glad it's getting some attention. It's a great remedy to some big problems too.

[Kid Berwyn]

50. GOOD! Traitors have no place in Washington.

That includes Dimdonnie Drumpf and his co-conspirators in the House and Senate.

[UTUSN]

53. K&R

[Amishman]

56. Seems like a good way of losing more ground with public opinion

Let's face it, the general public doesn't give a shit about 1/6 anymore. The Pubs are leading in generic ballot polls for crying out loud.

If we start barring republicans from office (regardless of reasons), the media coverage will be slanted hard against us and be damaging.

While actions like this might be justified, actually doing it knowing the collateral damage it would cause, is very short sighted.

We're in bad shape for next year, and it is absolutely critical that we turn things around. Every action needs to be carefully weighed against how it will play our in the court of public opinion.

[Alexander Of Assyria]

67. The public gives a great deal of shit to an attack on democracy and the Republic by

a past twice impeached pResident. My opinion therefore is contrary.

Opinion polls are transitory…wait until the indictments drop and the corporate media can’t hide it all.

It’s not barring from office, it’s expulsion while in office, as outlined in the constitution.

The court of public opinion will come around when the top insurrectionists are in the court dock.

[hadEnuf]

82. Has what happened on 1/6 been actually defined in a "legal" sense?

I mean it's been called a riot, a demonstration, a gang of tourists, an insurrection, a coup d'état and nothing at all. Someone upthread also mentioned that no one has actually been charged with insurrection, which is the most common term applied to what happened.

Republicans play word games all day long. It would be helpful to have an official pronouncement or an "official name" that powerfully, accurately, completely and legally describes what 1/6 actually was. Corporate & RW media also spend a huge amount of time trying to blur the description of what happened on that day to keep people on the edge of their seats.

Having clarity on simple things like the correct name for an event can certainly have an effect on public opinion, which of course drives the politicians to act. Or to not act.

[Alexander Of Assyria]

85. Yes. It has. In great detail by 3 federal judges.

[hadEnuf]

86. And what their consensus?

[onenote]

57. One thing that Elias seems to have forgotten

As far as I know, not a single person who actually stormed the Capital has been charged with "insurrection." I cannot see the courts upholding any attempt to disqualify a member of Congress for insurrection when those who most actively engaged in the events of January 6 have not been charged with insurrection.

[mercuryblues]

58. Aid or comfort

Oh hell, no republican will be eligible.

[spanone]

60. ...K&R...

[world wide wally]

63. In this country, you couldn't get 2/3 of the congress to support a vaccine

for a deadly virus ravaging the nation. (Let alone to disqualify traitorous Republicans from running for office)

[Gore1FL]

66. it only takes 1/3 + 1

2/3 are required to allow the disqualified member.

Getting them recognized as "disqualified" in the first place would appear to be the challenge.

[jmowreader]

64. I have a slight issue with this theory

I like it and think it’s a good idea…BUT!

The 13th through 15th Amendments were ratified in the wake of the Civil War. The purpose of the paragraph we all like was to keep the Southern MOC who left when the Confederacy formed from just showing up one day and acting like nothing’s changed. You know what’s going to happen if we do this: the GOP is going to petition our hard-right Supreme Court for a ruling that this only applied to the former Confederates trying to get back into Congress…and they’ll probably get it.

We should probably try to find a piece of must-pass legislation…the National Defense Authorization Act works for me…and attach a paragraph declaring the 1/6 insurrection to be what it was. Once we have that, using the 14th to make half the Republican Caucus go home permanently would work.

[Gore1FL]

65. It would require 2/3 to do the wrong thing if this were pursued.

We have more than the 1/3 required to stop them from being seated assuming the insurrection/rebellion can be proven againt the individual members.

[sarisataka]

68. My prediction is

Discussion is as far as it will go

[Calista241]

69. Discussion by people that are intentionally uninformed on how this could actually be implemented.

[bucolic_frolic]

70. That's my take on it all along

Dems could retain the House in the event of expulsions that remain unfilled in 2023.

Mitch left a Supreme Court seat unfilled, and rammed through another in 3 weeks.

[NCjack]

72. DEMs should try to use it to expel the Members who participated in

1/6 Insurrection. If the Court favors the Republicans now on this, we need to know that before they grab the House in 2022.

[bucolic_frolic]

75. The 2/3 mentioned is for reinstatement, to waive their disqualification, "remove such disability"

But it doesn't say how they get expelled. Just that they no longer qualify. Presumably left to litigation, or other House action.

No wonder he expects litigation.

[sanatanadharma]

77. We are all 2/3rds correct

By my seat of the pants science, freely admitting lack of any evidence beyond DU, I suggest:

2/3rds of DU would like to see anti-American representatives denied seats in the legislature.
2/3rds of DU say it will never happen.
2/3rds of DU say reps have to lose in court first.
2/3rds of DU say it takes 2/3rds to expel.
2/3rds of DU say it takes 2/3rds to forgive.
2/3rds of DU say the other 2/3rds are wrong.
2/3rds of my knowledge might be right

[Mr.Bill]

80. If it were possible to remove stting members of Congress

with a simple majority, The last time the republicans were in the majority they would have removed every Democrat.

[Gore1FL]

84. It may be possible not to seat them in the next congress. nt