What SCOTUS Has to Decide About Trump and Disqualification

Here is a look at how the Supreme Court Justices might view the text of Section 3 of the Fourteenth Amendment, which the Colorado Supreme Court cited in its decision to keep Donald Trump off that state’s Republican primary ballot. The Court will hear oral arguments on February 8th.

What does Section 3 say?

At first glance, it’s easy to understand why Section 3 seems so relevant to the case of Donald Trump. Didn’t he take an oath when he became President? And surely he spoke to and encouraged supporters who then formed a mob and assaulted the Capitol on January 6th, 2021, with the goal of disrupting the tally of Electoral College votes. Couldn’t that count as engaging in an “insurrection or rebellion”? Could it be that he is disqualified from being President again? The Colorado Supreme Court thought so and, in December, in a case brought by several Republican and unaffiliated voters in that state, ruled that he shouldn’t even appear on the ballot for the state’s G.O.P. primary, to be held in March. But the Colorado justices stayed their ruling until the U.S. Supreme Court could hear Trump’s appeal of the case, now known as Trump v. Anderson. And the briefs of the parties before the Court involve fights over every one of those simple-sounding questions, and more.

Fourteenth Amendment

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.

What terms does the Court have to define?

What is an insurrection? What does it mean to engage in one? Whom exactly does Section 3 apply to? Who are the “enemies” it mentions? And who gets to decide? Also, does Congress have any role in all of this?

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

Why aren’t there answers to these questions already?

The Fourteenth Amendment was ratified in 1868—a long time ago. Section 3 was originally aimed at officials who had taken the side of the Confederacy in the Civil War. But as soon as 1872, and again in 1898, Congress made use of the power Section 3 gives it to “remove such disability” and passed amnesties for former Confederates. Between the immediate post-Civil War era and January 6th, 2021, Section 3 was invoked only once, to remove Victor Berger—a Socialist congressman who had been convicted on sedition charges for opposing the First World War—from the House of Representatives. (He was later reëlected.) Because Section 3 hasn’t been much used, it hasn’t been much tested.

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.

Is the President an ”officer of the United States”?

Surprisingly enough, this is a point of dispute. Trump’s lawyers argue that it must mean something that the President isn’t specifically mentioned in Section 3 when other positions—such as senator and elector—are, and that there are other places in the Constitution where “officer of the United States” seems to mean someone who is appointed, not elected. They cite, for example, the appointments and commissions clauses to back up that argument. A lower court in Colorado previously accepted that reasoning, but its ruling was overturned by the Colorado Supreme Court. And the Colorado voters who sued to remove Trump from the ballot argue that the “officer” argument is an absurd, willfully blind reading of the plain language and intent of Section 3. They cite, among other things, an exchange in Congress at the time that the Amendment was being debated, in which a senator indicated that the term “officer” covered the President. And there are other places in the Constitution (such as the emoluments clause) in which, they contend, “officer” does apply to the President.

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

Did Trump actually take an oath to “support” the Constitution?

He took the inaugural oath (and bragged about the size of the crowd), but his lawyers say that, for Section 3 purposes, that doesn’t count. Their reasoning, such as it is: most officeholders and elected officials take an oath that includes the exact word mentioned in Section 3—to “support” the Constitution. The President, however, takes an oath to “preserve, protect, and defend” the Constitution. But is there really a meaningful difference? As the lawyers for the Colorado voters argue, “preserve and protect” are, if anything, extra-supportive words.

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

How about offices other than the Presidency?

Some observers think that the Supreme Court might see the office/officer question as an easy way out of a controversial case: they could use it to rule that Section 3 doesn’t apply to Trump without getting tangled up in questions about January 6th. But they couldn’t dodge the issue for long, because so many other elected and appointed positions, both federal and state, are unquestionably covered. In fact, on February 16th, the Supreme Court will consider whether to hear another Section 3 disqualification case, involving a county commissioner in New Mexico.

Can you run for an office you can’t hold?

As strange as it may seem, another unsettled question is whether Trump (or anyone) can run for President even if he has been disqualified from being President. His lawyers point out that Section 3 doesn’t mention elections—just holding office. Plus, there’s a theoretical possibility that Congress could vote to remove a disqualification between the election and Inauguration Day. The lawyers on the other side argue that it would undermine elections, and be unfair to voters, to put someone on the ballot who is barred from taking the job. The Constitution requires a President to be at least thirty-five years old and a natural-born citizen, and someone who is not both can indeed be kept off the ballot. But that counter-argument just leads to additional questions. As the dissenters on the Colorado Supreme Court observed, if people have doubts about your age or your natural-born citizenship, you can show them your birth certificate. But what if they think that you are an insurrectionist or part of a rebellion? This is where the case gets harder.

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

What’s an insurrection?

“We need not adopt a single, all-encompassing definition of the word ‘insurrection,’ ” the majority on the Colorado Supreme Court wrote. “It suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power.” That’s a lot of words to say that January 6th looked like an insurrection to them. The Colorado voters included photographs of the mayhem at the Capitol in their reply brief, and emphasized that it wasn’t just a riot but an attempt to overturn the election. The U.S. Supreme Court might have a more (or less) encompassing definition. Some of the amicus briefs filed in support of Trump warn that, if he is disqualified, then many politicians who expressed support for Black Lives Matter protesters during the unrest following the murder of George Floyd could be, too. Those events might not seem remotely comparable—but the Court still gets a chance to say why one is an insurrection or rebellion, and one isn’t.

Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to

What else in Section 3 can disqualify someone?

The focus in Trump’s case has been on the word “insurrection.” But what about “rebellion” and “enemies”? (Other amicus briefs in support of Trump have even gone so far as to mention officials’ failure to secure the border or a member of Congress’s encouragement of Jewish Voice for Peace protests.) The Supreme Court may try to avoid doing more than it has to in order to resolve the Trump ballot question, but whatever it decides will inevitably have an effect on how all of Section 3 is read going forward.

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

Did Donald Trump engage in insurrection?

Assuming that January 6th was an insurrection, what was Trump’s role? He didn’t storm the Capitol, but the Colorado Republican voters argue that his speech and his tweets before and during the assault show that he incited it—and that, by inciting, he “engaged in” insurrection. The Supreme Court will at least have to consider whether Trump’s words are protected by the First Amendment. That’s a big issue, because it’s part of an even bigger one: Who decides whether someone is an insurrectionist? In Colorado, a lower-court judge held a multiday hearing in which the evidence introduced included portions of the House of Representatives’ January 6th committee report, which documented Trump’s involvement, and the state Supreme Court justices did their own analysis. Is that enough? And can different states have different standards and procedures for disqualification? The Colorado Supreme Court’s answer is yes (and Maine’s secretary of state has said that it’s her duty to use her own judgment in removing Trump from the ballot). Trump’s lawyers argue that the result would be “bedlam.” To an extent, that’s typical Trump-speak—raising the spectre of violence. But the Supreme Court has to make sense of the possibility that some states might disqualify Trump while others might not. What would that mean for the Electoral College? Or for the President’s legitimacy?

Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to

What about Griffin’s Case?

One of the few precedents that gives guidance on implementing Section 3 is a ruling known as Griffin’s Case, which dates to 1869—just a year after the Fourteenth Amendment was ratified. It was written by Salmon P. Chase, who was the Chief Justice of the United States but for that case was sitting as a lower-court judge. Chase made two key findings. First, disqualification requires due process: a “provision which at once without trial deprives a whole class of persons of offices held by them” would be inconsistent with the Constitution’s “spirit and general purpose.” Second, “legislation by congress was necessary” to put Section 3 into effect. This Congress-first aspect of Griffin is crucial in the Trump case, because the Colorado courts used a process that relied on state election law, not on a law passed by Congress.

Pro-disqualification briefs filed to the Court argue that Griffin’s Case is not as relevant as it might seem: it isn’t technically a Supreme Court case; it involved removing an official from a job that he held before the Fourteenth Amendment was ratified, rather than preventing someone from assuming an office; and Chase had earlier taken inconsistent positions. Some scholars maintain that Chase is simply wrong and that Section 3 is “self-executing.” The case may well turn on how much weight the Justices place on Chase’s words.

But Congress may by a vote of two-thirds of each House, remove such disability.

So how is Section 3 implemented?

In a sense, this is the nub of the problem: there is no consensus about how to use Section 3, even in the face of Trump’s outrageous actions. In 1870, Congress did pass legislation to implement Section 3, in line with both Griffin’s Case and with Section 5 of the Fourteenth Amendment, which gave it the power to enforce the Amendment “by appropriate legislation.” The problem is that, thanks to a 1948 revision of the federal code, much of the language of that law was repealed, and there is disagreement about whether a criminal-insurrection statute still on the books—18 U.S.C. 2383—can, or must, be used to enforce Section 3. But Trump has never been charged under 18 U.S.C. 2383. (He was charged with incitement to insurrection when he was impeached for the second time, but he was acquitted in his Senate trial.) The Supreme Court will have to decide whether that matters.

No person shall be a Senator or Representative in Congress, or elector of

Is this democratic?

There are a lot of ways to think about the question of democracy and Section 3—and the Supreme Court will likely hear quite a bit on the subject. One of Trump’s arguments is simply that he’s the front-runner, and so people should get to vote for him. Of course, there are limits on democracy under the Constitution—it’s not just that the majority rules. And he rejected the results of the last election; don’t democracies get to defend themselves? But that Trump-centered view only scratches the surface of Section 3. Another way to think about the democracy question is to ask how different readings of Section 3 support or undermine other parts of the Constitution, such as the First Amendment or, for that matter, the rest of the Fourteenth Amendment, which strengthened the federal government’s power to protect people from being disenfranchised, particularly by state governments that sought to deny Black Americans the vote. Section 3 is about who gets to participate fully in public life—not just about whether Trump is on the ticket. The Supreme Court has its work cut out. ♦