The Case for the Fourteenth: Removing Senators Cruz and Hawley From Office
In the aftermath of the January 6 Capitol riot, Republican Senators Ted Cruz and Joshua Hawley were accused of instigating the riot by pushing the narrative that the November election results were fraudulent. Even as the insurrectionists converged upon the Senate chamber, endangering the entire Congress and ultimately causing five deaths, Cruz and Hawley still objected to the certification of the election’s results. This prompted figures from across the political spectrum to call for their removal from the Senate.
On both sides of the aisle, many have accused Cruz and Hawley of legitimizing the unfounded theory that the election was rigged by objecting to the certification of the results for their own political gain. Many Democratic members of Congress condemned their actions and even several Republican colleagues criticized Cruz and Hawley for giving their supporters false hope that the election results could be overturned in order to further their political ambitions. Senator Tom Cotton of Arkansas noted that, “these senators, as insurrectionists literally stormed the Capitol, were sending out fund-raising emails.”
Even after the chaos and destruction that unfolded at the Capitol, neither Cruz nor Hawley express any regret for their objections. In response to intense backlash, Cruz said in a tweet that he was “in no way responsible” for the violence. Hawley released a statement, similarly arguing that he was simply engaging in a discussion about the integrity of the election. The senators’ refusal to claim responsibility for their contributions to the riot has prompted a discussion of a various paths that could be taken to hold them accountable.
In particular, Democratic Senator Joe Manchin of West Virginia said the Senate should consider invoking the Fourteenth Amendment to remove these senators from office and ensure they can never hold civil office in the United States again. Although the Fourteenth Amendment has never been used to remove US senators, there is now a large movement calling for these senators to be held responsible for the roles they played in the Capitol riot.
Roles in Capitol Riot
Hawley first attracted widespread media attention and prompted intense political backlash when he became the first senator to object to President Joe Biden’s presidential election victory. The junior senator from Missouri is one of the most vocal supporters of former president Donald Trump’s claims that the election was stolen from him. Hawley was even photographed raising a fist in solidarity with the pro-Trump protestors who later stormed the Capitol building. In response to claims that he should be held responsible for the riot, Hawley simply said that he “will never apologize for giving voice to the millions of Missourians and Americans who have concerns about the integrity of our elections.”
Along with Hawley, Cruz led the conservative attempt to decertify the presidential election results. He drew heavy criticism in particular for continuing to object to the Arizona and Pennsylvania election results when Congress reconvened immediately following the attack on the Capitol. The Texas Democratic Party, along with several large newspapers and Texas lawmakers called on Cruz to immediately resign, claiming that his efforts to block Biden’s lawful victory empowered the violent mob of Trump supporters that had stormed the Capitol only hours before.
The Fourteenth Amendment
Section Three of the Fourteenth Amendment states that anyone who has “engaged in insurrection or rebellion against the [United States] or given aid or comfort to the enemies thereof” shall not hold federal or state civil office. Essentially, anyone who has made an oath to the United States Constitution and violates said oath is subject to the language of section three. Congress, by a two-thirds majority, may vote to “remove such disability” and ban an individual from holding office. However, a majority vote in Congress can only express the opinion that Section Three applies, so it is up to the judiciary to make the formal legal decision to remove the senators from office.
Using the Fourteenth against Hawley and Cruz would be quite unprecedented, but it is a possible course of action, as long as Congress can agree that the senators either engaged in insurrection directly, or aided enemies of the United States. The Fourteenth Amendment is primarily known for guaranteeing equal protection and due process of the law to all American citizens. Until the events at the Capitol, there was very little political discourse about the contents of Section Three. It was ratified immediately following the Civil War to prevent Confederate leaders from holding public office during the Reconstruction era. At the time, Southerners opposed the provision, arguing that it would hinder any attempts to “unite” the country.
Section Three has only been invoked once since Reconstruction, when it barred a House representative from holding office after he had opposed the US involvement in World War I, on the grounds that he had violated his Constitutional oath and aided his country’s enemies. The Fourteenth does not exclusively apply to leaders of rebellions or enemies of the state.Vocally opposing a war was considered to be a disqualifying action demonstrating disloyalty to the country. It is likely that espousing the beliefs of a movement that stormed the US Capitol in an effort to disrupt the certification of a Presidential election would fall into the same category. If Congress can get two-thirds of its members to assert this belief, then the Supreme Court could vote to expel Hawley and Cruz from the Senate and ban them from holding public office for life.
Going Forward
While it currently seems unlikely that Congress will be able to get a majority to vote to use the Fourteenth Amendment, several senators have filed an ethics complaint against them, alleging that by proceeding with their objections after the attack, the senators legitimized the mob’s movement and made the possibility of future violence more likely. Supporters of Cruz and Hawley are making a similar argument to that of the Confederates following the Civil War—that any attempts to hold them accountable for their actions would disrupt the unification of this country.
The movement to expel Hawley and Cruz sparked by the initial outrage after the Capitol riot seems to have lost steam in the month following the attack, but it still remains possible to invoke the Fourteenth Amendment to bar them from office. Both senators have been accused of objecting to the election results in a bid to cater to the GOP base, positioning themselves for Presidential campaigns in 2024. Expelling the senators using the Fourteenth would not only discourage the spread of conspiracy and further violence, but also block Cruz and Hawley’s paths to the Republican nomination in 2024.
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