Nearly 24 years ago, five right-wing members of the Supreme Court handed the presidency to George W. Bush in Bush v. Gore. Despite the conservatives’ hypocritical deference to the states on gun control, tobacco “rights,” disability rights and violence against women, the court overruled Florida’s interpretation of its election statutes to install Bush as president.
Now, the high court is poised to insinuate itself once again into a presidential election by allowing Trump-the-insurrectionist to remain on the ballot in Colorado in violation of the disqualification clause in Section 3 of the 14th Amendment. But this time the six right-wingers on the court will likely be joined by at least two of their liberal colleagues.
At the February 8 oral argument in Anderson v. Trump, every member of the Supreme Court except Sonia Sotomayor signaled they will disregard the command of Section 3 and hold that individual states cannot disqualify candidates for national elections unless Congress passes a statute saying they can.
It looks like a near-unanimous majority of the high court will overturn the Colorado Supreme Court’s holding that former President Donald Trump is disqualified from appearing on the ballot.
Section 3 of the 14th Amendment states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Several members of the court seem inclined to accept Trump’s argument that the president is not an “officer” of the U.S. — a proposition so ludicrous you don’t have to be a lawyer to see its absurdity. Some members who purport to be “originalists” appeared prepared to read into Section 3 a requirement that Congress pass legislation before the disqualification can be invoked. Most members of the court all but ignored Trump’s participation in the January 6 insurrection, the greatest threat to the survival of the republic since the Civil War.
Indeed, Section 3 was enacted after the Civil War to disqualify people from holding office who had served in government prior to the war but then supported the Confederacy.
Trump Claims President Isn’t “Officer” of the U.S.
In questioning whether the president is an officer of the United States, Neil Gorsuch and Ketanji Brown Jackson cited Section 3’s listing of several officers that didn’t include the president. But that section also includes “any office, civil or military,” and the Constitution calls the president an “officer” in several other places. Gorsuch and Jackson appeared to agree with Trump’s claim that “officers” refers only to appointed officials, not elected ones. But Sotomayor called that interpretation “a bit of a gerrymandered rule.”
Moreover, these originalists, who profess to consider the “original public meaning” at the time the 14th Amendment was added to the Constitution, disregarded explicit comments on the floor of the Senate during debate on Section 3 that the president is indeed an officer. John Bingham, the lead author of the 14th Amendment, referred to the president as an “officer.” Further, 29 historians concluded in amicus briefs in this case that “officer” was meant to include the president.
As the Colorado Supreme Court stated, “President Trump asks us to hold that Section 3 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.” The court concluded, “Both results are inconsistent with the plain language and history of Section 3.”
Gorsuch and Samuel Alito thought this lawsuit may be premature because Section 3 forbids insurrectionists only from holding office, not running for office. They noted that if Trump were elected, Congress could remove the disqualification by a two-thirds vote before his term began.
Jason Murray, an attorney representing the Colorado voters challenging Trump’s eligibility, noted that Article II and the 10th Amendment give states the authority to run presidential elections. As such, they “have the power to ensure that their citizens’ electoral votes are not wasted on a candidate who is constitutionally barred from holding office.”
Just because Congress can remove the disability does not “implicitly bestow on President Trump a constitutional right to run for offices that he cannot hold in violation of state law and state procedure under Article II,” Murray said.
Trump Claims Section 3 Isn’t “Self-Executing”
Brett Kavanaugh asserted that the “original public meaning” of Section 3 was that Congress must pass a statute before an officer could be disqualified from holding office because that section is not “self-executing.” But the Supreme Court held in the 1883 Civil Rights Cases that the 14th Amendment “is undoubtedly self-executing, without any ancillary legislation.”
Kavanaugh turned instead to Griffin’s Case, a lower court case (which is not binding precedent) that said Section 3 is not self-executing but requires a congressional enactment. Congress passed the Enforcement Act of 1870 in the wake of Griffin’s Case to implement Section 3, but that act was repealed in the 1940s.
When pressed by Jackson about the lack of uniformity if states are allowed to enforce Section 3, Murray replied that what the framers “were concerned most about was ensuring that insurrectionists and rebels don’t hold office.” Thus, he added, “It would be a little bit odd to say that states can’t enforce it, that only the federal government can enforce it, and that Congress can essentially rip the heart out of Section 3 by a simple majority just by failing to pass enforcement legislation.”
Instead of focusing on whether Trump did participate in an insurrection against the U.S. on January 6, Elena Kagan, Amy Coney Barrett and John Roberts, along with Jackson, Alito, and Kavanaugh, were concerned that a single state could decide the issue.
“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” Kagan told Murray. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation? … That seems quite extraordinary, doesn’t it?”
Murray responded that Colorado was deciding only for its voters to enforce the disqualification clause, much like it would exclude candidates from the presidency who were under 35 years old, not born in the U.S. or had already served two terms.
Jackson doubted whether the drafters of Section 3 meant to establish “disuniformity in this way, where we have elections pending and different states suddenly saying, ‘You’re eligible, you’re not.’”
Barrett worried about a situation in which the factual record wasn’t fully developed in state court and how the high court should review those findings. It “just doesn’t seem like a state call,” she noted.
Alito was troubled about different states reaching different conclusions about the admissibility of evidence. He wondered whether, in reviewing a state record, the Supreme Court would have to determine what rules of evidence to apply and what burden of proof to use to show the candidate was an insurrectionist. Both Alito and Roberts were wary of what Alito called the danger of a “cascading” effect of affirming the Colorado Supreme Court’s decision disqualifying Trump.
Kavanaugh declared that “Congress has the authority here, not the states.” He said the court “should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide,” a concern echoed by Jackson. Kavanaugh, who upheld voter suppression laws leading up to the 2020 election, warned that enforcing Section 3 against Trump “has the effect of disenfranchising voters to a significant degree.”
In response, Murray told Kavanaugh that, “The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.”
These members of the court also failed to mention that the 14th Amendment was enacted by Congress and signed by the president in a quintessential exercise of democracy.
“The Framers of Section 3 knew from painful experience that those who had violently broken their oaths to the Constitution couldn’t be trusted to hold power again because they could dismantle our constitutional democracy from within, and so they created a democratic safety valve,” Murray told the court. “President Trump can go ask Congress to give him amnesty by a two-thirds vote. But, unless he does that, our Constitution protects us from insurrectionists.”
The Colorado trial court held a five-day hearing during which evidence amassed by the bipartisan Select Committee to Investigate the January 6th Attack on the United States Capitol was presented. Trump had the opportunity to call and cross-examine witnesses and to testify. The Colorado Supreme Court affirmed the trial court’s finding that Trump had committed insurrection by trying to overturn the election by altering electoral vote counts, promoting false slates of electors, pressuring then-Vice President Mike Pence to violate his constitutional duty and urging a march on the Capitol.
Interestingly, although he denied that Trump engaged in insurrection, Trump attorney Jonathan Mitchell characterized the events of January 6 as follows: “This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3.”
Although Section 3 does not require that an official who has sworn an oath to support the Constitution be convicted of insurrection to be disqualified from the presidency, Kavanaugh raised that concern.
Expect a Political Decision
Alito and Roberts were uneasy about the chaos that disqualifying Trump from the ballot might unleash. But they weren’t so concerned about chaos erupting when they overturned Roe v. Wade, upheld voter suppression measures and shot down gun control measures.
Roberts worried about the possibility of a plethora of disqualifications of both Republican and Democratic candidates. “I would expect … a goodly number of states will say, whoever the Democratic candidate is, ‘You’re off the ballot.’”
Murray began his argument by telling the court that, “Our nation’s capitol came under violent assault” for the first time since the War of 1812. “For the first time in history,” he continued, “the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.” He also noted that, “By engaging in an insurrection against the Constitution,” Trump “disqualified himself from public office,” and he now says the Supreme Court should carve out a special exception that would apply only to him. Trump is the only former president except George Washington who didn’t hold office before he was elected president.
Sotomayor cynically asked Mitchell, “Are you setting up so that if some president runs for a third term, that a state can’t disqualify him from the ballot?”
In their brief, attorneys representing Colorado voters noted, “The thrust of Trump’s position is less legal than it is political. He not-so-subtly threatens ‘bedlam’ if he is not on the ballot. But we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”
We can expect the Supreme Court to make a speedy decision in this case, as the primary season is well underway. Meanwhile, the high court is slated to decide whether to render a quick ruling on whether Trump, who is facing 91 felony charges, has immunity from criminal prosecution, or whether to prolong that determination until after the election, thereby maximizing Trump’s chances of victory.