Opinion
The justices will keep Trump on the ballot. Here’s how (and why) they’ll do it. By
Ruth MarcusAssociate editor|AddFollowJanuary 10, 2024 at 10:35 a.m. EST
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So, did Trump engage in insurrection? The Colorado Supreme Court, upholding the findings of a lower court judge, concluded he did.
Any definition of the term, the Colorado court said, “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 in this country.” And, it said, it had “little difficulty concluding that … the events of January 6 constituted an insurrection,” as a mob armed with deadly weapons and intent on blocking Congress from certifying the election results “repeatedly and violently assaulted police officers who were trying to defend the Capitol.”
That raises the harder question of whether Trump himself engaged in this insurrection. The Colorado court noted that Attorney General Henry Stanbery, in office at the time the 14th Amendment was being debated, found that “a person may ‘engage’ in insurrection or rebellion ‘without having actually levied war or taken arms’” if they commit “any overt act for the purpose of promoting the rebellion.” Trump, the court said, did just that. After the election, he riled up his followers to dispute the election results. On Jan. 6, 2021, he “gave a speech in which he literally exhorted his supporters to fight at the Capitol.”
And Trump, it said, “did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
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Trump’s lawyers dispute both conclusions. “‘Insurrection’ as understood at the time of the passage of the Fourteenth Amendment meant the taking up of arms and waging war upon the United States,” they told the high court. “In the context of the history of violent American political protests, January 6 was not insurrection and thus no justification for invoking section 3.”
In addition, they argue, “nothing that President Trump did ‘engaged’ in ‘insurrection.’” Rather, “his only explicit instructions called for ‘protesting peacefully and patriotically,’ to ‘support our Capitol Police and Law Enforcement,’ to ‘[s]tay peaceful,’ and to ‘remain peaceful.’”
This is convenient cherry-picking of a record that is far less kind to Trump. But it’s worth noting, though not dispositive, that special counsel Jack Smith chose not to charge Trump — indeed, he hasn’t charged any of the Jan. 6 defendants — under the federal insurrection law, which targets “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof,” and which carries with it the penalty of disqualification from public office.
Smith might have been wary of using that law because it would have allowed Trump to contend that charging him with incitement to insurrection violates his right to free speech. The same delicate First Amendment balance arises in the Section 3 context: whether Trump’s language was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” as the Supreme Court ruled in Brandenburg v. Ohio (1969).
The Colorado Supreme Court said Trump’s incendiary words met that stringent test, citing, among other things, a Chapman University sociologist who testified about how extremists respond to Trump. Free speech protections “should not turn on opinions from sociology professors,” Trump’s lawyers told the court, and it’s easy to see a majority seizing on the First Amendment question to defend Trump’s speech and therefore his right to remain on the ballot.
Section 3 doesn’t apply to Trump because it doesn’t cover presidents.
This sounds preposterous, but it might provide a tempting off-ramp for the justices. In describing those subject to disqualification, Section 3 specifies those who are senators, representatives, presidential electors, or “hold any office, civil or military, under the United States, or under any State” and who previously took an oath “as a member of Congress, or as an officer of the United States.” Is the presidency such an office and the president such an officer?
If the amendment’s authors meant it to apply to the president and vice president, it seems odd that they would specify members of Congress and even presidential electors but leave out those positions. Yet it seems odder still that the amendment would prohibit insurrectionists from holding minor state offices but not the most important post in the land.
Grappling with this issue, the Colorado Supreme Court said the lower court had erred in tossing out the effort to disqualify Trump on these grounds. “It seems most likely that the Presidency is not specifically included because it is so evidently an ‘office,’” unlike members of Congress or presidential electors. It noted that the Constitution itself refers to the presidency as an office 25 times, “and refers to an office ‘under the United States’ in several contexts that clearly support the conclusion that the Presidency is such an office.”
For example, the impeachment clause allows Congress, as a consequence of removal from office, to impose “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” If the presidency it not an office “under the United States,” the court said, “then anyone impeached — including a President — could nonetheless go on to serve as President,” a “nonsensical” reading.
An earlier version of Section 3 specifically listed the president and vice president, a change the lower court found compelling. But the Colorado Supreme Court cited evidence that the drafters believed their new language covered those top offices. It pointed to a Senate debate in which one lawmaker expressed concern that the language “does not go far enough” because insurrectionists “may be elected President or Vice President of the United States.” Another senator replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”
In addition, the Colorado Supreme Court writes, the debates during and after ratification of the 14th Amendment assumed the presidency was covered. “Many supporters of Section Three,” it noted, “defended the Amendment on the ground that it would exclude Jefferson Davis from the Presidency.”
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In sum, the court, said, “A construction of Section Three that would nevertheless allow a former President who broke his oath, not only to participate in the government again but to run for and hold the highest office in the land, is flatly unfaithful to the Section’s purpose.”
Trump’s lawyers respond that the drafters would have listed the presidency if they had meant to cover it. To interpret it to include the president, “one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors,” they write. “This reading defies common sense and is not correct.”
They offer a competing reading of the Constitution, noting that the phrase “officer of the United States” appears three times, “and in each of these constitutional provisions the president is excluded from the meaning of this phrase.” For example, the appointments clause empowers the president to appoint ambassadors, Supreme Court justices and “all other Officers of the United States” — suggesting, they say, that the president is not themselves an officer.
But the Trump lawyers undercut the potential strength of their case with the outlandish argument that the constitutionally prescribed presidential oath — to “preserve, protect and defend the Constitution of the United States” — is somehow different from the oath specified in Section 3 to “support the Constitution of the United States.” Trump, they contend, “never took such an oath as a member of Congress, as a state legislator, or as a state executive or judicial officer.” This is the kind of argument that gives lawyers a bad name.
As the Colorado Supreme Court concluded, “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. Both results are inconsistent with the plain language and history of Section Three.”
Section 3 requires implementing legislation from Congress in order for it to be enforced.
This approach would allow the court to stop short of ruling on Trump’s conduct while avoiding text-parsing contortions about officers and offices.
The Colorado Supreme Court rejected this argument. “While Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision,” it said. [Section 5 empowers Congress “to enforce, by appropriate legislation” the provisions of the amendment.]
Other parts of the 14th Amendment have been interpreted not to require enabling legislation, as havethe companion amendments, the 13th, abolishing slavery, and the 15th, establishing universal male suffrage, the court noted, and “there is no textual evidence that Congress intended Section Three to be any different.”
The court also dismissed the significance of an opinion from 1869, the year after the 14th Amendment was ratified, by Chief Justice Salmon Chase. Riding circuit, as justices did then, Chase rejected an effort by a formerly enslaved man, Caesar Griffin, to have his conviction overturned because the judge in his case had been a state legislator in the Confederacy and, Griffin claimed, was therefore disqualified from holding office.
Chase disagreed. “Legislation by Congress is necessary to give effect to the prohibition, by providing for such removal,” he wrote. But his ruling, which he issued while riding circuit, isn’t binding on the Colorado Supreme Court and, the four-justice majority said, “This one case does not persuade us of that point.”
One of the three dissenting justices, however, relied heavily on Griffin’s Case and the underlying issue of whether Section 3 requires implementing legislation. Justice Carlos Samour Jr. also pointed to the fact that Congress passed a law to enforce the disqualification provision; the measure was repealed in 1948. Notably, in the aftermath of Jan. 6, a measure to was introduced to that effect but didn’t make any headway.
“As recently as 2021, just months after the January 6 incident, Congress considered legislation to enforce Section Three through a civil proceeding,” Samour wrote. “Why would Congress do so if, as the majority insists, Section Three is self-executing?”
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These aren’t the only bases on which the justices might rule; they are endlessly adept at finding ways to sidestep issues they’d prefer not to tackle and to dispose of difficult cases.
The deeper issue for the court is how to deal with a corner of the Constitution that has been so little utilized — one scholar who believes it can be applied to Trump, University of Minnesota law professor Gerard Magliocca, termed it “vestigial.”
But constitutional provisions don’t have sell-by dates; they don’t expire if not used. Between the Reconstruction era and Jan. 6, 2021, Section 3 was applied precisely once to disqualify an official — in 1919, when Congress refused to seat socialist Victor Berger, accused of having given aid and comfort to Germany in the First World War.
“The vexing question is what becomes of a constitutional provision that lives beyond its historical context with nothing in either legislation or judicial interpretation to keep it up to date,” NYU law professor Samuel Issacharoff wrote on the Just Security blog.
Vexing indeed — especially, perhaps, for the court’s self-proclaimed textualists, who might find themselves torn between the hewing to the language of the Constitution and the consequences of adopting such a strict construction.
Here Samour, the Colorado justice, got to the heart of the matter, invoking “the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis.”
Indeed, look at the Maine secretary of state’s decision to exclude Trump from that state’s ballot. “Left to local administration, with limited fact-finding by a single judge or state official, the risk is that Trump’s exclusion in Maine will beget a political tit-for-tat in which Biden is in turn excluded in a red state, or candidates of either party are pulled from the ballot in future,” Issacharoff warned. “Down that path lies nothing good for democracy.”
If there were ever a moment for looking beyond the text to real-world results, the case that will go into the history books as Trump v. Anderson is it.
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The Supreme Court isn’t going to save us from another Donald Trump presidency. The justices announced Jan. 5 that they will take up the question of whether states can exclude Trump from their ballots under Section 3 of the 14th Amendment, which makes former officials who engaged in insurrection ineligible for future office.
The court was correct to take the case — an appeal from a Colorado Supreme Court decision declaring Trump ineligible to appear on the state’s GOP primary ballot — and, given the need to get the Section 3 issue settled, to speed up the proceedings, with the case set to be argued Feb. 8.
But those who are looking to this once-obscure, rarely invoked provision of the Constitution for salvation are apt to find themselves disappointed. It would be extraordinary for any Supreme Court to declare that the front-runner for his party’s nomination can be barred from the ballot; doing so would unleash widespread confusion, and worse, on the nation. This Supreme Court, with six justices nominated by Republican presidents, isn’t going to take that step — and, as I’ve written before, I expect they’ll be joined by some or all of the Democratic appointees.
The chief mystery — and one that will be fascinating to watch as the case unfolds — is how the court will arrive at that conclusion. That might take some intellectual gymnastics for the conservative justices who are professed originalists, committed to hewing to the constitutional text. Trump’s lawyers, in a goulash of a brief, served up an array of arguments for Trump to run — some tendentious, others more compelling. What follows is an assessment of some possible outcomes.
This would be the most straightforward basis for ruling, but I suspect the justices will be reluctant to plunge the court into the political thicket of deciding whether the former president is an insurrectionist. The court doesn’t have to agree on its reasoning, but garnering a majority for that proposition might be difficult as well. Still, that’s the fundamental question, so let’s go through the arguments.
Section 3 provides: “No person shall … 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 … 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.”
So, did Trump engage in insurrection? The Colorado Supreme Court, upholding the findings of a lower court judge, concluded he did.
Any definition of the term, the Colorado court said, “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 in this country.” And, it said, it had “little difficulty concluding that … the events of January 6 constituted an insurrection,” as a mob armed with deadly weapons and intent on blocking Congress from certifying the election results “repeatedly and violently assaulted police officers who were trying to defend the Capitol.”
That raises the harder question of whether Trump himself engaged in this insurrection. The Colorado court noted that Attorney General Henry Stanbery, in office at the time the 14th Amendment was being debated, found that “a person may ‘engage’ in insurrection or rebellion ‘without having actually levied war or taken arms’” if they commit “any overt act for the purpose of promoting the rebellion.” Trump, the court said, did just that. After the election, he riled up his followers to dispute the election results. On Jan. 6, 2021, he “gave a speech in which he literally exhorted his supporters to fight at the Capitol.”
And Trump, it said, “did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”
Trump’s lawyers dispute both conclusions. “‘Insurrection’ as understood at the time of the passage of the Fourteenth Amendment meant the taking up of arms and waging war upon the United States,” they told the high court. “In the context of the history of violent American political protests, January 6 was not insurrection and thus no justification for invoking section 3.”
In addition, they argue, “nothing that President Trump did ‘engaged’ in ‘insurrection.’” Rather, “his only explicit instructions called for ‘protesting peacefully and patriotically,’ to ‘support our Capitol Police and Law Enforcement,’ to ‘[s]tay peaceful,’ and to ‘remain peaceful.’”
This is convenient cherry-picking of a record that is far less kind to Trump. But it’s worth noting, though not dispositive, that special counsel Jack Smith chose not to charge Trump — indeed, he hasn’t charged any of the Jan. 6 defendants — under the federal insurrection law, which targets “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof,” and which carries with it the penalty of disqualification from public office.
Smith might have been wary of using that law because it would have allowed Trump to contend that charging him with incitement to insurrection violates his right to free speech. The same delicate First Amendment balance arises in the Section 3 context: whether Trump’s language was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” as the Supreme Court ruled in Brandenburg v. Ohio (1969).
The Colorado Supreme Court said Trump’s incendiary words met that stringent test, citing, among other things, a Chapman University sociologist who testified about how extremists respond to Trump. Free speech protections “should not turn on opinions from sociology professors,” Trump’s lawyers told the court, and it’s easy to see a majority seizing on the First Amendment question to defend Trump’s speech and therefore his right to remain on the ballot.
This sounds preposterous, but it might provide a tempting off-ramp for the justices. In describing those subject to disqualification, Section 3 specifies those who are senators, representatives, presidential electors, or “hold any office, civil or military, under the United States, or under any State” and who previously took an oath “as a member of Congress, or as an officer of the United States.” Is the presidency such an office and the president such an officer?
If the amendment’s authors meant it to apply to the president and vice president, it seems odd that they would specify members of Congress and even presidential electors but leave out those positions. Yet it seems odder still that the amendment would prohibit insurrectionists from holding minor state offices but not the most important post in the land.
Grappling with this issue, the Colorado Supreme Court said the lower court had erred in tossing out the effort to disqualify Trump on these grounds. “It seems most likely that the Presidency is not specifically included because it is so evidently an ‘office,’” unlike members of Congress or presidential electors. It noted that the Constitution itself refers to the presidency as an office 25 times, “and refers to an office ‘under the United States’ in several contexts that clearly support the conclusion that the Presidency is such an office.”
For example, the impeachment clause allows Congress, as a consequence of removal from office, to impose “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” If the presidency it not an office “under the United States,” the court said, “then anyone impeached — including a President — could nonetheless go on to serve as President,” a “nonsensical” reading.
An earlier version of Section 3 specifically listed the president and vice president, a change the lower court found compelling. But the Colorado Supreme Court cited evidence that the drafters believed their new language covered those top offices. It pointed to a Senate debate in which one lawmaker expressed concern that the language “does not go far enough” because insurrectionists “may be elected President or Vice President of the United States.” Another senator replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”
In addition, the Colorado Supreme Court writes, the debates during and after ratification of the 14th Amendment assumed the presidency was covered. “Many supporters of Section Three,” it noted, “defended the Amendment on the ground that it would exclude Jefferson Davis from the Presidency.”
In sum, the court, said, “A construction of Section Three that would nevertheless allow a former President who broke his oath, not only to participate in the government again but to run for and hold the highest office in the land, is flatly unfaithful to the Section’s purpose.”
Trump’s lawyers respond that the drafters would have listed the presidency if they had meant to cover it. To interpret it to include the president, “one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors,” they write. “This reading defies common sense and is not correct.”
They offer a competing reading of the Constitution, noting that the phrase “officer of the United States” appears three times, “and in each of these constitutional provisions the president is excluded from the meaning of this phrase.” For example, the appointments clause empowers the president to appoint ambassadors, Supreme Court justices and “all other Officers of the United States” — suggesting, they say, that the president is not themselves an officer.
But the Trump lawyers undercut the potential strength of their case with the outlandish argument that the constitutionally prescribed presidential oath — to “preserve, protect and defend the Constitution of the United States” — is somehow different from the oath specified in Section 3 to “support the Constitution of the United States.” Trump, they contend, “never took such an oath as a member of Congress, as a state legislator, or as a state executive or judicial officer.” This is the kind of argument that gives lawyers a bad name.
As the Colorado Supreme Court concluded, “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. Both results are inconsistent with the plain language and history of Section Three.”
This approach would allow the court to stop short of ruling on Trump’s conduct while avoiding text-parsing contortions about officers and offices.
The Colorado Supreme Court rejected this argument. “While Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision,” it said. [Section 5 empowers Congress “to enforce, by appropriate legislation” the provisions of the amendment.]
Other parts of the 14th Amendment have been interpreted not to require enabling legislation, as havethe companion amendments, the 13th, abolishing slavery, and the 15th, establishing universal male suffrage, the court noted, and “there is no textual evidence that Congress intended Section Three to be any different.”
The court also dismissed the significance of an opinion from 1869, the year after the 14th Amendment was ratified, by Chief Justice Salmon Chase. Riding circuit, as justices did then, Chase rejected an effort by a formerly enslaved man, Caesar Griffin, to have his conviction overturned because the judge in his case had been a state legislator in the Confederacy and, Griffin claimed, was therefore disqualified from holding office.
Chase disagreed. “Legislation by Congress is necessary to give effect to the prohibition, by providing for such removal,” he wrote. But his ruling, which he issued while riding circuit, isn’t binding on the Colorado Supreme Court and, the four-justice majority said, “This one case does not persuade us of that point.”
One of the three dissenting justices, however, relied heavily on Griffin’s Case and the underlying issue of whether Section 3 requires implementing legislation. Justice Carlos Samour Jr. also pointed to the fact that Congress passed a law to enforce the disqualification provision; the measure was repealed in 1948. Notably, in the aftermath of Jan. 6, a measure to was introduced to that effect but didn’t make any headway.
“As recently as 2021, just months after the January 6 incident, Congress considered legislation to enforce Section Three through a civil proceeding,” Samour wrote. “Why would Congress do so if, as the majority insists, Section Three is self-executing?”
These aren’t the only bases on which the justices might rule; they are endlessly adept at finding ways to sidestep issues they’d prefer not to tackle and to dispose of difficult cases.
The deeper issue for the court is how to deal with a corner of the Constitution that has been so little utilized — one scholar who believes it can be applied to Trump, University of Minnesota law professor Gerard Magliocca, termed it “vestigial.”
But constitutional provisions don’t have sell-by dates; they don’t expire if not used. Between the Reconstruction era and Jan. 6, 2021, Section 3 was applied precisely once to disqualify an official — in 1919, when Congress refused to seat socialist Victor Berger, accused of having given aid and comfort to Germany in the First World War.
“The vexing question is what becomes of a constitutional provision that lives beyond its historical context with nothing in either legislation or judicial interpretation to keep it up to date,” NYU law professor Samuel Issacharoff wrote on the Just Security blog.
Vexing indeed — especially, perhaps, for the court’s self-proclaimed textualists, who might find themselves torn between the hewing to the language of the Constitution and the consequences of adopting such a strict construction.
Here Samour, the Colorado justice, got to the heart of the matter, invoking “the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis.”
Indeed, look at the Maine secretary of state’s decision to exclude Trump from that state’s ballot. “Left to local administration, with limited fact-finding by a single judge or state official, the risk is that Trump’s exclusion in Maine will beget a political tit-for-tat in which Biden is in turn excluded in a red state, or candidates of either party are pulled from the ballot in future,” Issacharoff warned. “Down that path lies nothing good for democracy.”
If there were ever a moment for looking beyond the text to real-world results, the case that will go into the history books as Trump v. Anderson is it.
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