SUPREME DECISION - WILL DONALD TRUMP BE DISQUALIFIED?
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- Background:
- The Supreme Court will hear oral arguments today, February 8 at 10am ET
- Is Trump disqualified from holding office even if he wins the November election?
- Supreme Court has never made a decision on Section 3 of the 14th Amendment of the U.S. Constitution
- Colorado Supreme Court decision disqualifying Trump from the State's primary ballot is the subject of appeal
- Supreme Court wants to move quickly on this decision
- Constitutional Qualifications for the Presidency:
- Must be at least 35 years old (Art. II)
- Must be a natural-born citizen (Art. II)
- Cannot be elected President more than twice (22nd Amendment)
- Cannot have engaged in insurrection against the Constitution after taking an oath as an officer of the United States to support the Constitution (14th Amendment, Section 3)
- The insurrection challenge arises from Trump's efforts to reverse the 2020 election outcome, including assertions that he was materially involved in the attack on the Capitol on January 6, 2021 as a strategy to prevent VP Mike Pence from certifying the electoral count victory for Joe Biden.
- >>The Constitutional Question: Did Donald Trump Engage in Insurrection against the Constitution of the United States?
- Fourteenth Amendment, Section 3 (ratified in 1868): 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.
- Colorado Supreme Court Decision, Dec. 19, 2023: “[W]e conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”
- Will the Court dodge the ultimate disqualification question? Multiple briefs urge the Court to resist any temptation to take an “off-ramp” to avoid resolving the fundamental Fourteenth Amendment issue. For example, an insurrectionist is constitutionally prohibited from holding office. Technically, the Court could rule the issue is not ripe for decision unless Trump ultimately wins the general election. Dodging the issue now, however, would leave Trump supporters unsure whether their votes are wasted on an ineligible candidate.
- The Primary Legal Issues:
- > Is Section 3 of the Fourteenth Amendment enforceable without legislation? Section 3 articulates the criteria for disqualification from holding office but does not specify a process for its enforcement. Trump argues Section 3 is not enforceable absent implementing legislation.
- >Was Donald Trump an “officer of the United States”? Trump argues Section 3 does not explicitly disqualify the President or Vice President for engaging in insurrection and its application to “officers of the United States” does not encompass the Presidency.
- >Did Donald Trump “engage in insurrection”? Trump contends he neither incited nor participated in the riot at the Capitol Building on January 6, 2021. Was the five-day mini-trial in Colorado adequate process (or sufficient due process) for determining that Trump indeed "engaged" in insurrection?
- >Can Section 3 be enforced in state administrative or judicial proceedings? Trump argues the Colorado court ruling usurps the exclusive constitutional authority of state legislatures to determine procedures and rules for the appointment of Presidential Electors under Art. II Sec. 1.
- “Political” Speculation & Conjecture Favoring Trump:
- Outrage for “disenfranchising” millions of Trump supporters: The Court could jeopardize its stature and institutional respect if it deprives millions of voters of the right to support their candidate of choice for the Presidency. Given Donald Trump’s apparent glide path to the GOP nomination, can the Court weather public criticism that it derailed the leading GOP candidate for President?
- Avoiding turmoil, protests and possible violence: Will there be concerns that Trump disqualification could trigger riots and potentially violent uprisings?
- Will conservative Justices protect the leading GOP candidate? In the 2000 election, a conservative majority issued a 5-4 ruling to resolve the Florida recount dispute in favor of Republican nominee George W. Bush over Vice President Al Gore. Will a conservative majority, including three Trump appointees, rule for Trump and overturn the Colorado Supreme Court?
- “Insurrection” could be weaponized by partisan state officials: Will partisan state election officials routinely assert insurrection challenges to deny ballot access to opposition party Presidential candidates?
- “Political” Speculation & Conjecture Working Against Trump:
- Trump disqualification enhances credibility of a conservative Court: After overturning Roe v. Wade, affirming Trump disqualification could reinforce perception of objectivity and political neutrality of conservative Court members
- Potential Trump defiance of court orders would be avoided: Trump’s verbal attacks against Judges and staff in other courts have triggered threats and harassment, displaying disrespect for the judiciary. Potential for future defiance of federal court orders under a Trump Administration could be a Court concern.
- Avoid politically volatile disputes unique to Donald Trump: If Trump wins in November, will the Court be forced to decide whether a President can pardon himself?
- Would an alternative GOP candidate perform better against Biden? Broader support among independents and swing voters could improve prospects for a Republican victory, ensuring Republican-appointed replacements if any conservative members retire from the Court.
- Timing & Subsequent Action:
- The case is on a fast-track
- Oral arguments will be held today February 8
- There is no Supreme Court precedent addressing Sec. 3 of the Fourteenth Amendment. Outcome predictions are pure guesswork.
- A decision should be issued before the March 5 “Super Tuesday” primaries. Colorado is a Super Tuesday primary. A quick decision –- perhaps within a week -- would not be surprising, i.e. around mid-February, potentially several days before the upcoming South Carolina primary.
- If the Colorado Supreme Court’s disqualification of Trump is affirmed, the decision would only remove Trump from the ballot in Colorado. But affirmance (resolving the 14th Amendment legal issues) would likely accelerate similar cases in states with laws allowing candidate qualification challenges. The floodgates would open.
- If disqualification is upheld, the baton passes to Congress to restore Trump’s eligibility to hold office, but winning supermajorities in both houses of Congress (two-thirds vote) to restore eligibility is probably an uphill fight for Trump.
- Apart from state-by-state proceedings, established rivals (i.e. Gov. Nikki Haley, possibly a third-party candidate) would likely have standing to seek a federal court order declaring Trump ineligible in all states.
Q and A: What if Trump is disqualified from holding office but insists on running for the Presidency anyway? Perhaps unlikely, but if he prevails and defeats President Biden, and Congress does not remove his disqualification, Trump's Vice President-Elect would become Acting President. If no candidate receives a majority of electoral college votes, the House of Representatives would select the next President with each state receiving one vote. Note: Not all states require that their Presidential electors vote for the winner of the popular vote in their respective states.
Can and would the RNC (Republican National Committee) modify its rules at the Convention to facilitate an alternative candidate if a disqualified Donald Trump wins a majority of Republican delegates?
