On Dec. 28, Maine Secretary of State Shenna Bellows disqualified Donald J. Trump from running in the Republican presidential primary in her state. Earlier in December, the Colorado Supreme Court upheld a lower court’s decision that Mr. Trump is disqualified from appearing on that state’s ballot in the Republican primary or in November. Both those decisions are on hold until the U.S. Supreme Court considers Mr. Trump’s appeal of the Colorado ruling (arguments begin on Feb. 8), but in at least 10 other states, statewide officials, courts and even particular counties may soon try to disqualify Mr. Trump.
The basis for these actions is Section 3 of the 14th Amendment, which was ratified in 1868 in order to keep former legislators and officers of the Confederate states out of the renewed federal Congress and other branches. It says:
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.
In the 1872 Amnesty Act, Congress exempted most former Confederacy officials and army officers from Section 3, ostensibly as a gesture of reconciliation. But in 2022, a federal appeals court found that the Amnesty Act does not cover participants in the Jan. 6, 2021, invasion of the U.S. Capitol. (Then-U.S. Representative Madison Cawthorn had argued speciously that the 1872 law had effectively repealed Section 3 and thus applied to people in the future.) In fact, at least one official, a county commissioner in New Mexico, has been removed from office for his actions on Jan. 6.
The argument is that, just as whether a 19-year-old should be elected president is not a matter for voters to decide, Americans cannot vote for someone validly disqualified under the 14th Amendment.
Secretaries of state, county clerks, state legislators and judges responding to plaintiffs—as in the Colorado case—are now being asked to keep Mr. Trump off ballots in their jurisdictions because, as president, he had sworn an oath to defend the Constitution and then betrayed that oath by inciting supporters to use force against Congress on Jan. 6. The argument is that, just as whether a 19-year-old should be elected president is not a matter for voters to decide, Americans cannot vote for someone validly disqualified under the 14th Amendment.
Legal experts generally think it unlikely that the U.S. Supreme Court will uphold any such disqualification of Mr. Trump, but they are far from certain that it will simply dismiss all efforts to disqualify him. The court will have to address at least five key issues.
Who decides and how?
First, based on other parts of the Constitution, some jurists have argued that the president is not actually “an officer” or someone “holding” an office in the sense meant by the 14th Amendment. But this is a historically implausible view which the Colorado Supreme Court rejected (as has the supreme court in Michigan). It would be odd for the U.S. Supreme Court to rule that the 14th Amendment applies to traitorous congressional candidates or presidential cabinet nominees but not to a traitorous presidential candidate.
Second, there is an issue of timing. The U.S. Supreme Court could respond to the Colorado case by allowing Mr. Trump onto Republican primary ballots, but on the narrow grounds that challenges to Mr. Trump’s eligibility are premature, or not “ripe,” until he is the Republican nominee. That would allow cases to proceed in other states, giving the court a wider array of arguments to consider before making a final ruling on Mr. Trump’s eligibility.
Third, the justices must eventually rule on who has authority to decide whether a candidate has engaged in insurrection within the meaning of the 14th Amendment. For example, on Dec. 27, Michigan’s highest court let stand a ruling that the Michigan secretary of state lacks the authority “to remove a legally ineligible candidate” from the presidential primary ballot once their name is submitted by a political party. This decision is based on the premise that state law empowers political parties to put even constitutionally ineligible candidates on the federal ballot. But the Supreme Court could rule that federal law overrides state law, compelling state officials, for example, to remove from the ballot a candidate who is only 19 years old—or one who has engaged in insurrection.
The high court will be under a lot of pressure to articulate a national standard.
In any case, it would be surprising if the U.S. Supreme Court allows states to reach different decisions on Mr. Trump’s ballot eligibility. It might allow courts in various states to rule differently on whether private plaintiffs can try to force election officials’ hands, allow state courts to review pleas for or against 14th Amendment disqualification, or allow statewide boards of election to decide eligibility (as in New York). But the high court will be under a lot of pressure to articulate a national standard. Otherwise, as Missouri’s secretary of state is now arguing, an official could remove President Biden based only on their own opinion that his policies on allowing asylum seekers into the country amounts to a kind of “insurrection.”
Fourth, the Supreme Court must address the argument that Section 3 is inoperative because federal law says too little about what standards and methods state officials must use in deciding on disqualifications. This was essentially the reasoning behind a decision by Supreme Court Justice Salmon Chase (acting as a lower court judge) in 1869, when he rejected the argument that a criminal conviction should be overturned because the trial judge had fought for the Confederacy and should have been disqualified under Section 3. Chase seemed to suggest that without a process detailed in statute, enforcing Section 3 would simply create too much inconvenience in the legal system.
But two “originalist” scholars, William Baude and Michael Paulsen, have both castigated Chase’s reasoning and argued that there is plenty of precedent for judges to uphold the removals from office of anyone directly involved in insurrectionary plots. J. Michael Luttig, an influential conservative judge, agrees that Mr. Trump should be “disabled” from eligibility, in the amendment’s language.
The Supreme Court must address the argument that Section 3 is inoperative because federal law says too little about what standards and methods state officials must use in deciding on disqualifications.
Another constitutional scholar, Gerard Magliocca, agrees that Section 3 is “self-executing,” which means that federal and state officials can reasonably apply it on their own authority without following a process detailed in other law. These scholars reject the strained theory that Congress’s Section 5 powers to enact enforcing statutes imply that Section 3 is not self-executing. (In fact, as constitutional scholar Garrett Epps has written, Section 5 originated with an effort to ensure that Congress could force the states to abide by the Bill of Rights.)
There is one federal law (U.S. Code §2383) relevant to the enforcement of Section 3, which says that “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto,” can be fined or jailed, and “shall be incapable of holding any office under the United States.” This law does not set out a procedure, outside of criminal prosecution, for punishing “insurrection,” but it is widely thought that a criminal conviction is not required before disqualification under the 14th Amendment. Rather, disqualification is a political finding—somewhat like impeachment.
Disqualification is a political finding—somewhat like impeachment.
Obviously, if Mr. Trump were convicted of “insurrection” under federal or state law, that could help to justify state courts or state secretaries of state disqualifying him from running or serving. But legal experts say that Special Counsel Jack Smith chose not to charge Mr. Trump with insurrection because that would be harder to prove than the conspiracy charges (including a “conspiracy against the right to vote and to have one’s vote counted”) on which Mr. Smith’s case focuses.
The fifth question is whether the Supreme Court might side with dissenting opinions in Colorado, which argued that the lower court’s process, including five days of evidentiary hearings, was too quick. The court could require a more extensive process in each state, such as the one Marjorie Taylor Greene received in Georgia, giving the person under threat of disqualification something akin to a full trial. The justices could do this without deciding whether Mr. Trump actually engaged in insurrection, and while reserving the right to review what state officials do within a more extensive disqualification process ordered by the court.
In addition, the Supreme Court is not supposed to consider likely political impacts of their decisions, but in this case, they will surely recognize that any permission for state officials to disqualify Mr. Trump as an insurrectionist could generate unprecedented public anger—and may even increase the chances of his election if disqualification comes only in some states rather than as a national decision. Still, disqualification in one swing state, such as Wisconsin, could be decisive in a tight race.
To resolve all these uncertainties, the Supreme Court will probably move fast after the justices hear oral arguments next month.
