A rule meant to expel separatist rebels from politics after the U.S. Civil War is now being invoked to determine the fate of Donald Trump.
Section 3 of the U.S. Constitution’s 14th Amendment bars people from holding office if they ever engaged in insurrection or rebellion after swearing an oath as an officer of the U.S.
Now the U.S. Supreme Court is poised to be asked to make one of the most momentous constitutional decisions in American history: whether this bars the Republican presidential front-runner from running for president.
This comes after a state court found the leading candidate in most presidential election polls, Trump, ineligible to run for office after he inspired a mob to attack the U.S. Capitol on Jan. 6, 2021, in an effort to remain in office following the election of Joe Biden as president.
“It is an extraordinary historical moment,” said Richard Friedman, an expert on constitutional law and the history of the Supreme Court at the University of Michigan.
“A major candidate for president has just been held ineligible to be on the ballot.”
Friedman was referring to the groundbreaking ruling on Tuesday by the Colorado Supreme Court that ordered Trump removed from the state’s primary ballot, in a move that’s hypothetical for now: The court paused enforcement of the decision to give the U.S. Supreme Court a chance to weigh in.
The nation’s top court will be pressed to consider every angle of that above-mentioned amendment from 1868: What is an officer? What is an insurrection? What does it mean to be engaged in one? And who gets to make that determination?
‘Uncharted territory’
In their ruling, the Colorado judges made clear their own awareness that they were doing something unprecedented.
“We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the court said in its decision.
“We are likewise mindful of our solemn duty to apply the law, without fear or favour, and without being swayed by public reaction to the decisions that the law mandates we reach. We are also cognizant that we travel in uncharted territory.”
The Colorado Supreme Court has ruled Donald Trump cannot run for president next year in the state, citing a constitutional insurrection clause.
The potential implications of this decision are akin to lobbing a gas canister into the already combustible political environment of the moment.
Almost immediately, Fox News was running a headline across its screen: “Targeting The Frontrunner.” Trump was quickly fundraising off the news. He sent supporters a message calling this the greatest constitutional travesty in American history and vowed to never surrender.
In terms of electoral politics, the case has no immediate impact; Colorado’s ballot will not change for now and, even if it does, it’s unlikely to decide the election, as no Republican has won Colorado in 20 years.
But other states are watching.
A tracker at Lawfare, a blog devoted to national security issues, lists about a half-dozen key states where cases like this are percolating, places vital to Trump’s election chances — like Michigan, Wisconsin, Arizona and Texas; in several states, courts have rebuffed cases like this, but appeals are pending.
5 potential outcomes at top court
Constitutional experts interviewed by CBC News outlined five potential outcomes if, as expected, the Supreme Case takes up the case.
Trump’s electoral prospects are already, to a certain degree, before the high court.
Justices will hear cases that could determine the timing of at least one Trump trial and potentially address an important question: whether a case against Trump will proceed before the presidential election in November 2024.
Legal scholars see one of five things happening in this extraordinary case.
Possibility No. 1: The Supreme Court upholds the Colorado ruling.
“Absolutely fatal [for Trump],” said Amanda Shanor, an assistant professor of constitutional law and a scholar of free-speech issues at the University of Pennsylvania’s Wharton School. “If the plaintiffs prevail in the Supreme Court, he will not be president.”
At the very most for Trump, the University of Michigan’s Friedman said, there could be court challenges in other states where Trump allies argue the court decision for Colorado doesn’t apply to their electoral law.
“An earthquake” is how this scenario was described by Julian Davis Mortenson, a scholar of the Constitution and the U.S. presidency at the University of Michigan.
“He would soon be disqualified everywhere. Except for places that engaged in judicial disobedience.”
‘There’s still an out’ for Trump
A second possibility would see a narrow ruling against Trump. In this scenario, the court would uphold the Colorado ruling but argue that it’s specific to the exercise of electoral law in that state and doesn’t apply elsewhere. Shanor called this scenario extremely unlikely, as it involves a national question about a fundamental constitutional issue.
A third possibility: a procedural escape hatch. The court strikes down the Colorado decision on procedural grounds and entirely ignores the substance of the case — an off-ramp for the judges, if you will.
“There’s still an out,” Mortenson said. “They can declare it a political question.”
He’s referring to the political question doctrine in which judges can declare an issue as so fundamentally political that they have no business interfering in it. The court once laid out six factors in determining what qualifies as a political question.
It’s fuzzy and unevenly applied — and it’s not always clear where the line stands, as virtually any constitutional case will have a political dimension to it. Case in point: The Bush v. Gore case that may have decided the 2000 election was not dismissed as a political question.
In Mortenson’s view, this is the likeliest way Trump walks away from this case.
The court could declare this a political question and would, in that case, almost certainly make clear that its judgment invalidated the Colorado ruling, he said.
A fourth possibility: a punt. In this scenario, the court would take its time getting to the case. Trump still appears on the Colorado primary ballot in the meantime, pending a decision.
Then there are new challenges related to general election ballot.
Shanor said the court would have plenty of time to decide by November. But there are no guarantees. It’s possible the election could come and go before a decision, Mortenson said, and justices would thereafter declare the question moot.
The fifth and final of these possibilities: The court quashes the Colorado decision.
A majority of justices could disagree with the state court on the meaning of the words “engage” or “insurrection” or “officer.”
And then Trump is free to keep running in the 2024 election, in the face of four criminal cases.
Legal observers split on Colorado ruling
So, what’s the bottom line: Do these experts think Colorado judges made the right call?
Some wholeheartedly agree: “A very reasonable decision,” Friedman said.
To those who argue that it constrains democratic choice, he added: So? “That’s what constitutions do.” They define the extent of political rights. For example, he said, they also infringe upon Taylor Swift’s right to run for president before she turns 35.
On the left-leaning MSNBC network, conservative former judge Michael Luttig saluted the decision: “It was masterful. It was brilliant. It is an unassailable interpretation of the 14th Amendment.”
Unsurprisingly, the conclusions ran the other way on Fox News. Its legal analyst, Francey Hakes, called it “a couple of hundred pages of hot garbage.”
She’s not alone. Writing about this issue recently, Stanford law professor Michael McConnell, a former federal judge, said he has no use for Donald Trump, but he called “insurrection” a very serious term and said it should only be applied narrowly, and carefully, in a case this serious.
He also questioned the logic of applying this insurrection provision when none of the Jan. 6 participants has actually been convicted in court — or even charged — under the criminal statute that covers insurrection. Including Trump.
Regarding the democratic implications of this, McConnell asked rhetorically: “What could go wrong?”
Even in the Colorado ruling, the minority dissenting opinion raised these concerns.
“The irregularity of these proceedings is particularly troubling given the stakes,” said the minority opinion. “What took place here doesn’t resemble anything I’ve seen in a courtroom.”
Did an insurrection occur on Jan. 6?
The University of Michigan’s Mortenson, for his part, has been wrestling with this.
He called the Colorado decision solidly reasoned. The Supreme Court, he said, will have a hard time rejecting it on its merits — in fact, the Colorado ruling made sure it quoted conservative high court Justice Neil Gorsuch to buttress its opinion.
But he’s uncomfortable.
Mortenson is a proud liberal and occasionally refers, in casual conversation, to the events of Jan. 6, 2021, as an “insurrection.”
This, however, is not casual conversation. He said it stretches credulity that the events at the Capitol resemble the armed effort to secede from the United States in the Civil War.
“We’re just not talking about two equal things,” he said.
“To call it insurrection for the purposes of the Constitution is on the outer edges of what the term, I think, plausibly means — and leaves me very uncomfortable if the result of that is to disqualify a major, broadly supported political candidate from office.”
We’ll see what the Supreme Court might say. The American presidency hangs in the balance.