Section 3 of the Fourteenth Amendment to the United States Constitution 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 … 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. … But Congress may by a vote of two-thirds of each House, remove such disability.
The Colorado Supreme Court cited Sec. 3 for authority when it ordered Donald Trump disqualified from the Colorado Republican Party’s presidential primary ballot last December. In January, the U.S. Supreme Court agreed to review that order, and it heard oral argument in the case earlier this month. Because it’s Presidents Day, and because I’m sure someone is making book on the outcome, in this post I’ll offer some thoughts about how the Supreme Court is likely to rule in the case.
First and foremost, don’t bet on Colorado to win. The smart money was always against that outcome, and since oral argument the odds against it have grown very long indeed. All nine justices, including Justices Kagan, Jackson, and Sotomayor, seemed skeptical of the arguments presented by Colorado’s legal team and receptive to one or more of the arguments presented by the Trump team. Indeed, Justices Barret, Kagan, Jackson, and Sotomayor actually suggested ways to strengthen some of those arguments.
Whether the U.S. Supreme Court overturns the Colorado Supreme Court’s decision obviously matters a great deal, but why it does so matters even more. In its brief to the court, the Trump team provided five separate reasons to rule against Colorado. A ruling based on some of those reasons would resolve the question of Trump’s eligibility once and for all. A ruling based on some of the others would simply defer the question temporarily, which would be far from ideal at a time when public confidence in the electoral process is at an all-time low. Below I’ll discuss the pros and cons of each of Trump’s arguments, and because some readers may be inclined to wager on the outcome, I’ll rank them in the order of how likely they are to be adopted by the court.
Absent Congressional authorization, Section 3 does not empower states to enforce its provisions.
Sec. 3 doesn’t specify whether the states may enforce its provisions on their own initiative. Nevertheless, Trump’s team used the historical record and general constitutional principles to argue that they may not. At oral argument, many justices, including Alito, Barrett, Kagan, and Kavanaugh, seemed particularly interested in that argument, and the court spent more time discussing it than all Trump’s other arguments combined. Legal arguments aside, it was clear that most of the justices are horrified by the prospect of blue states disqualifying Trump willy-nilly using widely varying legal procedures and widely varying definitions of “engaged in insurrection,” and of red states retaliating by doing the same for Biden. For all those reasons, this option is the clear favorite.
Even if Section 3 disqualifies Trump from holding office, it doesn’t disqualify him from running for office.
While a distant second to the option discussed above, this argument also attracted a good deal of attention from the court. That may have surprised the many commentators who had previously dismissed it as frivolous, but it didn’t surprise me. Even assuming Trump did engage in insurrection, it’s hard to see how Sec. 3 could justify excluding him from the ballot in Colorado or anywhere else. Doing so would foreclose two scenarios that the text appears to both anticipate and permit: (1) that the voters might elect an insurrectionist and (2) that Congress might vote to allow such an insurrectionist to serve. One would expect this argument to appeal to textualists like Gorsuch and Thomas, but it was notable that Jackson and Sotomayor also seemed to take it seriously. Compelling as it is, however, I doubt the court will base its decision on this argument alone. Doing so would leave the question of Trump’s eligibility for office unresolved and expose the country to an even bigger and more acrimonious legal battle if he were to be elected.
Section 3 does not apply in this case because the president is not an “officer of the United States” as that phrase is used in the Constitution.
Sec. 3 only applies to persons who engage in insurrection after 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.” Colorado takes the position that Trump was an officer of the United States when he took his oath as president. Trump’s team, on the other hand, argues that the Constitution consistently uses “officer of the United States” to refer to appointed officers only, and not to elected officials like the president. It’s actually a strong argument supported by a good deal of rigorous scholarship, and a few justices, including particularly Justice Jackson, clearly took it seriously. Nevertheless, I wouldn’t give it better than even odds. In the past, many prominent originalists, including Antonin Scalia, have admonished courts to apply the ordinary public understanding of words and phrases unless there are compelling reasons to do otherwise. Whether a majority will decide that the circumstances of the present case justify substituting a legalistic interpretation for the ordinary meaning of “officer of the United States” is an open question.
President Trump did not engage in insurrection.
This, of course, is the fundamental issue. If Trump really did engage in insurrection, most people would agree that he should never be allowed to hold office again. On the other hand, if he didn’t, allowing this legal battle to continue would be a divisive waste of time and money. It would be nice, therefore, to resolve the question once and for all. Unfortunately, it is very unlikely the Supreme Court will be willing or able to do that. At oral argument several justices raised doubts about the adequacy and reliability of the evidentiary record provided by the Colorado courts, so they won’t want to resolve the question on the basis of that record. And since the court has neither the authority nor the means to develop a record of its own, that means they probably won’t be able to resolve the question at all.
The process used to disqualify Trump in Colorado violated the state election code.
There were certainly problems with the way Trump’s disqualification was handled by the Colorado courts. One of the justices who dissented from the Colorado Supreme Court’s decision described it as a “procedural Frankenstein.” Nevertheless, the U.S. Supreme Court has a long tradition of deferring to state supreme courts when it comes to their interpretation of their own states’ laws. It seems unlikely it will break with that tradition in this case, especially since doing so would merely return the matter to the Colorado courts and leave all the fundamental issues unresolved.
Disclaimer
Like horse races, Supreme Court cases are inherently uncertain. Wager at your own risk.
