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Efforts to Show that Exempting the President from the Scope of Section 3 of the 14th Amendment isn’t Absurd Underscore that it Actually is


One of the issues addressed in the recent Colorado Supreme Court decision holding that Donald Trump is disqualified from becoming president again under Section 3 of the Fourteenth Amendment is whether Section 3 applies to the presidency. A key reason to think it does apply is that ruling otherwise would lead to absurd results. As the Colorado ruling puts it, “President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land.” That sure seems absurd to me! And longstanding precedent disfavors interpretations that lead to absurd results.

In a recent Slate article, Harvard law Prof. Larry Lessig argues that excluding the president from Section 3 is not absurd. But his reasoning ultimately reinforces the very point he is trying to dispute.

Lessig’s main argument is that the presidency and vice presidency are unique because state officials barring presidential and VP candidates from the ballot create an “externality”:

[T]here is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court’s ruling to see why, as Texas Lt. Gov. Dan Patrick

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