Disqualifying Trump Is on the Docket

Red background with the U.S. Constitution faded into the background and lady liberty holding up a scale in one hand and a sword in the other looking like she is glitching.

On Feb. 8, the U.S. Supreme Court will hear arguments in case number 23-719, Donald J. Trump v. Norma Anderson. A former elected leader of the Republican Party, Anderson is the lead plaintiff in the case seeking to disqualify Trump from the Colorado presidential ballot by virtue of his participation in the events surrounding Jan. 6, 2021.

At issue is the proper application of Section 3 of the 14th Amendment. The 14th Amendment is one of three Reconstruction-era amendments aimed at affording African Americans the rights and legal protections denied to them during the antebellum period. It consists of five sections.

The first, and most well-known section contains the due process and equal protection clauses that underpin much of current American jurisprudence. Section 2 undoes the notorious three-fifth’s clause; Section 4 prohibits the questioning of U.S debt and Section 5 gives Congress the ability to enforce all the 14th amendment through “appropriate legislation.”

Tucked in the middle of the amendment is Section 3:

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.

For Trump to be disqualified from being president, a court must find that he was (1) “an officer of the United States;” (2) who previously took an oath “to support the Constitution of the United States” and (3) “engaged in insurrection or rebellion against the same.” Additionally, the courts must determine that the provision is self-executing, i.e., it does not require Congress to enact legislation under Section 5 for it to take effect.

This is a novel case. Never has a president incited a violent mob to storm the Capitol. Never has a major political party embraced a candidate who has been indicted in state and federal court for conspiring against the peaceful transfer of power. That the Supreme Court needs to hear this case speaks to the complete failure and moral bankruptcy of the GOP.

The fact that the case is unusual does not mean that it is difficult. The plain text should win the day.

By contrast, the legal arguments against disqualification require a cramped and nonsensical reading of the provision. For example, some opponents of disqualification argue that the president is not an “officer” of the United States and that when presidents swear to “defend” the U.S. Constitution, that does not mean they will “support” it. Neither of these accord with traditional principles of constitutional interpretation.

While we should take solace in the fact that no prior president has acted as recklessly as Trump, that is not a reason to ignore Section 3 of the 14th Amendment now.

Other Trump defenders insist that, however misguided Trump’s behavior was on Jan. 6, it did not rise to the level of insurrection or rebellion. The problem they face is that the Colorado court conducted a full evidentiary hearing and made specific findings that Trump’s conduct qualifies as an insurrection. The U.S. Supreme Court has no independent basis to disturb that factual finding.

Finally, some argue that the disqualification provision is not self-executing, but instead requires Congress to enact legislation for it to take effect. Though a convenient dodge, there is no legal reason supporting this position. Tellingly, none of the 14th Amendment’s other, better known, provisions require a separate congressional enactment.

To fill in the gaps of these weak legal arguments, a series of pseudo-legal claims have started to take hold. Proponents of keeping Trump on the ballot insist that strict adherence to the disqualification clause would damage democracy. At a minimum it would enrage his supporters and deny Republicans the ability to elect their candidate of choice. At its worst, they argue, disqualifying Trump would entangle the Court in politics and damage its credibility.

None of these are objections based on the law or Constitution.

To start, candidate eligibility is a constitutional feature not a flaw. The Constitution contains several requirements to be eligible to hold federal office. A person can be disqualified from holding federal office on account of age, where they were born and even where they live. The Framers of the 14th Amendment added that a person — who previously took an oath to support the Constitution and then engaged in insurrection or rebellion against the United States — cannot hold federal office.

While we should take solace in the fact that no prior president has acted as recklessly as Trump, that is not a reason to ignore Section 3 of the 14th Amendment now. There is no exception for former presidents who are renominated. The Constitution does not care about MAGA’s feelings and nor should the Court.

Bending the Constitution to avoid a confrontation with Trump is the antithesis of democratic rule. The Supreme Court would have never desegregated schools if conservative voices could have prevented constitutional decisions they disliked. Speakers would have no First Amendment protection at all if they must yield to a GOP veto.

As for politicizing the court, we must recognize the difference between the Court deciding cases with political implications and the Court becoming politicized. The Supreme Court routinely decides cases with profound political and electoral consequences.

In 2000, then-presidential candidate George W. Bush successfully petitioned the Supreme Court to halt a presidential recount in Florida that resulted in his election. In 2020, Trump and allies filed more than 60 unsuccessful lawsuits to have the courts overturn the presidential election in one or more states.  If the goal is to prevent the courts from deciding cases with political implications, that ship has sailed.

The way the Court can be nonpolitical in this case is simply to follow the Constitution rather than right-wing social pressure. Applying Section 3 of the 14th Amendment to disqualify Trump is a judicial act, not a political one. Ignoring the plain text of the Constitution because the Court fears the consequences would be an act of judicial abdication that will reinforce the belief that the Court is hopelessly political.

When the justices walk up to the Court next week to hear the Colorado disqualification case, they will see “Equal Justice Under Law” inscribed on the entrance. Donald Trump is entitled to that inscription as is every other citizen of this country. We should expect and demand nothing less.