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”: Lessig ignores the fact that presidential candidates are far from the only ones whose exclusion has an effects beyond the borders of their state. The same applies to members of Congress. They vote on legislation that applies to the entire country. If Missouri excludes Hawley from the ballot, and a Democrat gets elected senator as a result (or a less MAGA Republican), that impacts the entire nation, not just one state. MAGA Republicans across the country might lose out, not just those in Missouri. If you object to excluding insurrectionist candidates because doing so might create externalities like this, that’s not an argument for exempting the president. It’s an argument against having Section 3 at all. It’s true, of course, that partisan state officials could try to manipulate Section 3 to advantage their party. But that’s why Section 3 exclusions—like other  electoral qualification decisions—are subject to judicial review. If state officials try to bar someone who is not actually disqualified under Section 3, that candidate can sue to overturn their decision. It’s also worth emphasizing that the purpose of Section 3 is to prevent a different kind of externality from the type that concerns Lessig: having potentially dangerous former insurrectionists wield political power.

By admin