The Supreme Court could split the difference, leaving it up to Congress to decide his fate if he wins election.
Donald Trump’s commanding lead in the race for the Republican nomination was punctuated by his overwhelming victory in the Iowa caucuses, but we still don’t know if he’ll be on the ballot in every state come November.
Colorado and Maine have determined that Mr. Trump “engaged in insurrection” on Jan. 6, 2021, and therefore is ineligible to hold office under Section 3 of the 14th Amendment. The former president has appealed the Colorado ruling, and the Supreme Court is set to hear oral arguments next month.
All sides agree that the Section 3 clause is a Civil War-era provision that was intended to prevent former Confederates from holding office. The disputes are over whether the Jan. 6 riot at the Capitol was an insurrection and the degree of Mr. Trump’s responsibility for what happened that day. His defenders also contend that Section 3 applies only to events surrounding the Civil War, that it excludes the office of the presidency, and that Congress must pass legislation to implement it.
A University of Pennsylvania law review article published last year attempts to rebut those defenses. William Baude of the University of Chicago Law School and Michael Paulsen of the University of St. Thomas School of Law argue that Section 3 isn’t a dead letter. Rather, it “remains an enforceable part of the Constitution, not limited to the Civil War,” that it “is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress,” and that it “can and should be enforced by every official, state or federal, who judges qualifications.”
Twice in the late 19th century, Congress passed statutes that removed the disqualification for people who had engaged in insurrection. But Messrs. Baude and Paulsen maintain that if Congress had intended to “grant amnesty to all insurrections, past present and future,” it would have made that clear, and it didn’t.
Nor can Mr. Trump rely on the First Amendment to protect what he said in the runup to Jan. 6. “The First Amendment has long been held not to protect conspiracy to commit a crime or direct solicitation of unlawful activity,” they write. “And while one must use some caution about unduly expanding this category, conspiracy and solicitation are at its core.”
Whether Jan. 6 is labeled an insurrection, a rebellion or something else, the authors conclude, “instigating, inciting and encouraging a mob to engage in acts of forcible violence directed against the ability of Congress and the Vice President to carry out their constitutional duties—and then refusing to intervene—such conduct is covered by Section Three, and is disqualifying.”
Because six of the nine Supreme Court justices were appointed by Republican presidents, conservatives might assume that Mr. Trump will prevail. That’s expected but far from certain. Still, Messrs. Baude and Paulsen are well-regarded conservative constitutional scholars, and the court is likely to weigh their arguments in deciding the case.
The court’s conservatives ideally want to preserve the ability of states to set their own election rules, or at least have elected lawmakers rather than appointed justices decide Mr. Trump’s fate. A brief filed by the National Republican Senatorial Committee in support of Mr. Trump suggests a way to do that. The NRSC argues that even if Section 3 disqualifies the former president from holding office, it doesn’t follow that he’s disqualified from seeking office because Congress can later decide to remove the disqualification through a two-thirds vote.
“By its plain text, section 3 identifies a disqualification from serving in certain offices, but does not disqualify a covered person from running for office,” the brief reads. “And that textual distinction is particularly important because, unlike certain other disqualifications, section 3 makes that disqualification removable—and it commits the decision of whether and when to remove it exclusively to Congress.” The Colorado Supreme Court erred in removing Mr. Trump’s name from the ballot because even if the court were “correct that President Trump cannot take office on Inauguration Day, that court had no basis to hold that he cannot run for office on Election Day and also seek removal of any alleged disqualification from Congress if necessary.”
Under such a scenario, which is contemplated in the 20th Amendment, Mr. Trump’s running mate would serve as acting president until Congress decided the matter. If the justices are looking for a way to keep Mr. Trump on the ballot and not disenfranchise the supporters of someone who is currently leading President Biden in the polls, it’s one possibility. Mr. Trump’s opponents would rather defeat him in court and not risk losing to him on Election Day. The justices shouldn’t let them get away with that.
This piece originally appeared in The Wall Street Journal (paywall)
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Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator. Follow him on Twitter here. Appeared in the January 17, 2024, print edition as 'A Disqualified Trump Could Still Appear on the Ballot'.
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