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Congress has the power to grant Trump amnesty so he is eligible for primary ballots

STEVE INSKEEP, HOST:

The U.S. Supreme Court agreed to decide whether former President Donald Trump should be disqualified from Colorado's presidential primary ballot. Colorado's highest court ruled that the former president was ineligible because a clause in the Constitution blocks people who engage in insurrection from holding office afterward. Our next guest contends that the Supreme Court should not have the final say. He says the Constitution's 14th Amendment, which is the relevant one here, gives Congress the right to grant amnesty or not, so Trump is eligible for the primary ballot. Gerard Magliocca is a law professor at Indiana University. Welcome to the program.

GERARD MAGLIOCCA: Good morning, Steve. Nice to be here.

INSKEEP: And I'll just mention you're the author of "American Founding Son: John Bingham And The Invention Of The Fourteenth Amendment." So you've written about this. But I guess we should just emphasize, this is a question of who gets to decide whether the amendment applies - courts, states, random secretaries of state. Why would you think it's Congress?

MAGLIOCCA: Well, Congress has the power to give someone an exemption from Section 3 of the 14th Amendment with a two-thirds vote in each house. They can do that at any time. And that means, in part, that it's up to the Supreme Court to decide whether the law applies to Trump, but only the law. And any other reason for giving someone an exemption has to be made by Congress, such as you think it's in the best interest of the country to let someone run in spite of what they've done.

INSKEEP: Wait a minute. I want to think through what you're telling me here. You're saying that Trump is, in your view, ineligible unless Congress should vote that he should get to run. Is that right?

MAGLIOCCA: That's correct.

INSKEEP: OK. Meaning that you're saying that Colorado's Supreme Court was within its rights to decide that what the president, former president, did amounted to an insurrection and that this means the 14th Amendment applies. They get to say that, and only Congress can remove that disability. That's what you're saying.

MAGLIOCCA: That's correct. And also, it means that courts can't look at questions like whether they think disqualification is a good idea or a bad idea. People can have strong views on that, of course, but that's a decision reserved to Congress and a decision that Congress made many times during Reconstruction, after the Civil War, to decide to give certain people exemptions because they thought that it would be better if they were allowed to serve in office or hold office.

INSKEEP: Now, let me just push on this a little bit. I'm looking at the actual text of Section 3 of the 14th Amendment. This is a little complicated to discuss on the radio, but there's one of the Constitution's famous passive sentences where they have a passive sentence, so it doesn't say who gets to do something explicitly. No person shall be a senator, representative, etc., etc., or an officer of the United States. The way that you're reading it, it sounds to me like you feel that Colorado's Supreme Court or the Secretary of State of Maine, or just about anybody could say, I get to decide that someone engaged in insurrection. Is that rational? Is it fair? Is it politically wise?

MAGLIOCCA: Well, first of all, it is fair because all of this is subject to judicial review, and the Supreme Court is going to exercise that in Donald Trump's case. And so that is a safeguard against abuses. The second thing to say is, is it wise? That's not for courts to decide. The Constitution made that determination. The framers of the 14th Amendment made that determination, but they also allowed Congress to make exceptions. So that was the compromise. We're going to have this disqualification - a broad one - but we're going to let Congress make exceptions if necessary. And that's something that Congress can do now if people think that disqualification is bad for the country, or, of course, there are going to be others who think that disqualification is not bad for the country, and they can oppose an amnesty or waiver measure in Congress.

INSKEEP: I'm curious, having thought this through, as you have, if you think it might be politically wise for Congress to act on this and vote on the matter of whether Trump should be allowed to run. I mean, there's a case that even if you feel he engaged in insurrection, that the people should decide, and Congress has lifted the disability on other people, former Confederates, in the past.

MAGLIOCCA: Yes. I mean, I think it's something that should be discussed. I mean, right now there is no legislation pending in Congress to do this, and I think it should be discussed, and there should be a way for people to weigh in, in that fashion, in a way that they can't weigh in directly with the Supreme Court, because, of course, the Supreme Court can't decide legal issues on the basis of sort of polling or popular opinion.

INSKEEP: You're saying, effectively, this is a political decision. I mean, the law is relevant, but it's a political decision in the end.

MAGLIOCCA: Well, it's not a political decision for the Supreme Court. They have to focus on legal issues, like whether they think January 6 was an insurrection or whether it covers the presidency. And I'm confident that they will do that. But the ultimate question of whether Trump should be allowed to run is something that should be left to Congress, especially in the event that the court were to say that he is disqualified, that is those those questions about, do you think it's a good idea or not? That has to be left to Congress.

INSKEEP: Indiana University law professor Gerard Magliocca. Thanks so much.

MAGLIOCCA: Thank you, Steve. Transcript provided by NPR, Copyright NPR.

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