Donald Trump, 14th Amendment, and the Supreme Court

For Donald Trump and his ballot challengers, the U.S. Supreme Court had an urgent obligation to review the former president’s eligibility for office to avoid throwing a now-nascent election year into chaos.

Those who want him off and on the ballot sent the same message: They want a definitive conclusion.

By agreeing to hear the case, the nine justices with lifetime appointments have the opportunity to provide the last word by deciding whether Trump must be included or stricken as a presidential candidate on ballots nationwide. 

Depending on how they rule, however, the justices could also reach less conclusive answers. Chief Justice John Roberts presides over a Supreme Court with increasing attacks on its legitimacy, and he has tried since his 2005 arrival to avoid perceptions of the institution being political. 

Supreme Court watchers saw that impulse play out in National Federation of Independent Business v. Sebelius, the 2012 ruling that upheld then-President Barack Obama’s signature achievement, the Affordable Care Act, in a complex decision that affirmed the constitutionality of the individual mandate. Majorities of justices reached different conclusions as to Obamacare’s Medicaid expansion and the individual mandate’s conformity with the Commerce Clause or Necessary and Proper Clause, puzzling legal scholars and handing less-than-wholesale victory for the 44th president.

It's impossible to say how the conservative-majority ultimately will rule in the case, but legal experts said that they do not expect the justices to leave any loose ends untied in the 14th Amendment battle.

“I think that the Supreme Court is going to try to provide certainty,” former federal prosecutor Renato Mariotti said. “I suspect that the Supreme Court is going to do so in a way that sidesteps some of the larger issues.”

The Supreme Court could accomplish that by deciding whether Trump “engaged in insurrection,” within the meaning of the 14th Amendment. But some legal experts suspect that the justices may want to avoid wading into such a consequential question on the cusp of a presidential election. 

Only one outcome ends in resounding defeat for Trump, and that’s the justices ruling against the former president on every procedural issue — and finding that he engaged in insurrection. Such a decision could have profound political consequences, from threats of violent protests from Trump supporters to a scramble inside the GOP to find a new nominee to square off against Joe Biden and the Democrats in November. 

Every judge who has ruled on the merits so far has found that Trump engaged in insurrection, despite never having been charged with that crime. The U.S. Supreme Court could buck that trend in a rebuke to five Colorado judges to date who have found otherwise. 

But many experts believe that the Supreme Court likely will resolve the case on more technical grounds, avoiding the dramatic reckoning on how to characterize Trump’s actions before the Jan. 6 attack on the U.S. Capitol. 

Here are several possible Supreme Court rulings that would allow Trump to remain on the ballot that avoid the central question of whether Trump should be banned forever from U.S. government leadership over the Jan. 6 attack on the U.S. Capitol. 

Wholesale Trump victory: The Supreme Court finds the former president isn’t an “officer”

The Supreme Court could determine that Trump does not qualify as an “officer” under the Constitution, a finding that would block all of the ballot challenges without engaging with the merits. 

There is some historical evidence that the drafters of the 14th Amendment meant to exclude presidential candidates from the definition of an “officer.” 

Ratified in the wake of the Civil War, the amendment was designed to prevent former Confederate officers from returning to public life. In a legal brief backing Trump, the national Republican party noted that John Tyler, the 10th president of the United States from 1841 to 1845 and the only former U.S. president who sided with the Confederacy, was dead by the time of its ratification. Trump’s backers cited congressional debate and remarks by one former Congress member, two ex-U.S. senators and a non-binding opinion by an ex-Supreme Court justice, all from within a decade of the amendment’s ratification. 

The Colorado Supreme Court rejected those arguments in December, but the court invoked originalist principles — the dominant legal philosophy of the conservative U.S. Supreme Court — by stating the historical evidence becomes significant “only when the text is ambiguous, which it is not here.” 

That is why an article in The Atlantic opined: “The Colorado Ruling Calls the Originalists’ Bluff.”

But Trump’s former White House lawyer turned critic, Ty Cobb, said he believes there is a plain reading of the amendment that exempts his former client. 

The 14th Amendment rattles off a list of public offices that the disqualification clause applies to, and it includes a “Senator,” “Representative in Congress,” and an “elector of President and Vice-President,” without naming the president or vice presidents themselves. There is broader language excluding oath-breakers from holding “any office, civil or military, under the United States, or under any State,” but Cobb argues that the type of oath cited in the statute matters. 

The amendment applies to those who violate their oaths “to support the Constitution of the United States,” but Trump’s lawyers note that the president’s oath is to “preserve, protect and defend the Constitution.”

“The president doesn't take such an oath to support the Constitution,” Cobb said, adding that he takes the Article II oath, not the Article IV oath. 

The Colorado Supreme Court rejected this interpretation.

“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,” a 4-3 majority of the court ruled in December, emphasizing those words in italics.

Less-wholesale Trump victory: The Supreme Court could find the 14th Amendment’s Section Three isn’t “self-executing”

In a recent legal brief, Trump’s longtime personal attorney Jay Sekulow leaned into the argument that the U.S. Congress is meant to decide whether a candidate is ineligible for office under the 14th Amendment.

Though the 14th Amendment does not specify any mechanism for enforcement, it does clarify how to clear a disqualified candidate’s path to public office: “Congress may, by a vote of two-thirds of each House, remove such disability.” Sekulow argues that the inverse is also true: Only Congress can decide that a candidate for federal office is ineligible or create a law to determine procedures for making those determinations, he says. 

In legal parlance, the controversy amounts to whether the 14th Amendment is “self-executing” — or requires congressional action to enforce it. 

Sekulow calls the former option a recipe for “electoral chaos.”

"A self-executing Section Three, moreover, empowers each of the 50 states to decide for themselves who is disqualified, a recipe for electoral chaos perfectly illustrated by this case and by Maine’s recent decision to disqualify President Trump," he wrote in a 19-page legal brief.

If the Supreme Court determines that only Congress can enforce the statute, Trump likely would not have to worry about legislative action as a practical matter.

“It's generally a safe bet to presume that the parties in Congress aren't going to come together to work on much of anything on a bipartisan basis — particularly when it comes to matters involving Donald Trump,” said Mariotti, a legal analyst and co-host of the podcast “It’s Complicated.” 

That said, such a ruling theoretically could allow Congress to pass a law laying out an enforcement mechanism. 

“Even when Congress wanted Section Three enforced with respect to state offices, it believed that implementing legislation was required,” the Republican National Committee’s attorney Patrick N. Strawbridge wrote in a friend-of-the-court brief. 

“That’s why it authorized federal law-enforcement actions to remove such officers,” Strawbridge added.

Another way Congress could execute the clause: Elector objections

Supreme Court litigator James Bopp III, who spearheaded the Citizens United litigation and represented Rep. Marjorie Taylor Greene (R-Ga.) in defense of her own challenge to serving via the 14th Amendment, speculated that allowing only Congress to enforce Section Three could embolden Democratic lawmakers to object to Trump’s electoral votes if he won. 

“There's no question in my mind that at that point, when electors pledge to Trump, our Congress is certifying those results of the electors, from each state, that somebody could object that he's not qualified and therefore, Congress should not certify votes for him,” said Bopp, who successfully rebuffed attempts to keep Greene off the ballot. 

Even if that happened, legal experts said they believe that Trump likely would be safe from such a challenge.

“There could theoretically be objections in the House or Senate to Trump electors, but that would not get Biden over the top,” former federal prosecutor Mitchell Epner said. 

In such legal terra incognita, thought experiments can quickly stretch the limits of the political imagination. 

“Under the 12th Amendment, the winner must have a ‘majority of electors,’” added Epner. “A successful objection would throw the presidency into the House of Representatives, to vote by state.”

At that point, more than 26 state delegations in the new 119th Congress that gets sworn in to start January 2025 would have to vote for the winner. Exactly 26 states have majority Republican delegations in the current Congress that will dissolve soon after the 2024 elections, while 21 states have Democratic majorities, and three are evenly split. 

“If no one gets a majority for President, then the person with the majority of states for VP would serve as President,” Epner said. “That would be a political crisis of the highest order.”

Another type of uncertainty: Wholesale Trump defeat

Republican attorneys general from 27 states hypothesized what could happen if the Supreme Court upheld the major findings of the Colorado Supreme Court’s ruling: The 14th Amendment’s disqualification clause is self-executing, and as an officer of the United States, Trump triggered it by engaging in insurrection on Jan. 6, 2021. 

At that point, Trump’s electoral ambitions to get his old office back would be over, but the Republican AGs say that the uncertainty would not be over there. If the 14th Amendment does not require anyone to enforce it, there is little to prevent the conclusion that Trump’s presidency was illegitimate the day after the attack on the Capitol. 

“Under this view, ‘the actions that [former President Trump] took between Jan. 7 and Jan. 20—including the pardons he issued and the bills he signed into law’—would not be constitutionally valid,” the AGs wrote. 

The Republican attorneys general invoked this hypothetical to discredit the implications of the Colorado Supreme Court’s ruling. In their vision, such a ruling would open up a “Pandora’s Box” where a politician’s antagonists could oust them and invalidate their actions by coming up with a plausible theory of insurrection. 

“The Court should act now to stop all these ‘strange, far-reaching, and injurious results’ from spinning out of control,” the attorneys general wrote. 

The unlikely prospect of a narrow ruling

Fear of second-order consequences led some to believe that the U.S. Supreme Court might try to craft their ruling as narrowly as possible, just as Bush v. Gore in 2000 tried to limit its precedential value by limiting its analysis “to present circumstances” tied to a Florida recount that ultimately led to George W. Bush assuming the presidency. One way to accomplish that would be by objecting to the due-process afforded to Trump in the Colorado proceedings, as some of the dissents did in that state’s highest court. 

Legal experts find that sort of outcome unlikely.

“I think it would be very difficult for SCOTUS to limit the impact of a Colorado ruling to just Colorado,” Epner said. 

Even in Bush v. Gore, the attempt to cabin its reach failed, and federal judges have cited it in numerous election cases. 

Mariotti also expects the Supreme Court to “try to provide certainty with its decision, not introduce uncertainty.” 

“I believe we will likely do so in a way that sidesteps some of the most politically charged issues such as whether or not Donald Trump engaged in or incited an insurrection,” he added.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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