Sunday, February 25, 2024

Five ways the Supreme Court could rule for Trump on the 14th Amendment

Now that the Supreme Court has heard arguments in the case of President Trump and the 14th Amendment, it seems clear which side will prevail. The big question is what path the justices will take to allow him to vote.

During more than two hours of oral arguments Thursday, eight justices advanced at least five paths they could take to rule in Trump’s favor.

Only Judge Sonia Sotomayor seemed seriously considering ruling against him.

Here’s a look at where the court could end up.

What is the problem

In December, the Colorado Supreme Court ruled that Trump was ineligible to appear on that state’s ballot because of the 14th Amendment, adopted after the Civil War. Section 3 of the amendment reads:

“No person shall be a Senator or Representative in Congress, or an elector of the President or Vice-President, or hold any civil or military office, in the United States or in any State, who, having previously taken the oath, as 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, will have engaged in an insurrection or rebellion against the same, or given aid or comfort to his enemies. But Congress may, by a vote of two-thirds of each House, remove this handicap.

The amendment was designed to prevent former Confederates from regaining power in the U.S. government, but it still has effect and covers Trump, the Colorado court ruled.

The decision had four key elements:

  • As president, Trump had “taken oath…as an officer of the United States” and is therefore covered by the amendment’s language.
  • According to a five-day hearing in a Colorado trial court, the attack on the U.S. Capitol on January 6, 2021, was an “insurrection.”
  • Trump “engaged” in this insurrection through his words and actions.
  • Under the terms of the amendment, he is ineligible “to hold any office…under the United States,” including the presidency.

The U.S. Supreme Court justices seemed skeptical of all four of these elements.

Who decides ?

The argument that seemed to garner the most support among the justices questioned the state’s power to decide the case.

“Why should a single state have the ability to make this decision, not only for its own citizens but for the rest of the nation? Justice Elena Kagan asked Jason Murray, the attorney representing voters who challenged Trump’s electability. “That sounds quite extraordinary, doesn’t it?”

Murray insisted that Colorado was deciding only for its citizens and their ballots. What the state did was no different than what others did by excluding applicants who were too young to hold office or who were not born in the United States, he said.

Kagan was clearly skeptical. A ruling upholding Colorado’s ruling would have a nationwide impact, she said.

“There are some national issues over which states do not have authority,” she said. “What does a state do to decide who other citizens can vote for president? »

The 14th Amendment was “designed to take power away from the states” after the Civil War, she later said, when Shannon Stevenson, the Colorado attorney, defended the decision. It would be strange if this were interpreted as allowing each state to go its own way, Kagan said.

Justice Ketanji Brown Jackson, like Kagan, among three Democrats appointed to the court, also questioned the authority of states to make their own decisions on eligibility.

Why would the authors of the 14th Amendment “design a system” that would “allow different states to suddenly say, ‘You’re eligible, you’re not?’ » she asked.

Chief Justice John G. Roberts Jr. said allowing a state-by-state approach would inevitably invite a court in a conservative state to rule that President Biden was ineligible.

“There will surely be disqualification procedures on the other side,” he said. “I would expect a good number of states to say, regardless of the Democratic nominee, ‘You’re not on the ballot.’”

Should Congress pass a law?

Justice Brett M. Kavanaugh pointed to a decision from 1869, the year after the 14th Amendment was ratified. Chief Justice Salmon P. Chase ruled that insurrectionist disqualification could not be used unless Congress passed specific legislation to implement it.

Chase made this decision, in what is known as the Griffin case, in his role as an appeals court judge “traveling the circuit,” as judges did in the 19th century. It is therefore not a binding precedent for the Supreme Court. But, as Kavanaugh noted, it is a guide to what at least some figures of the time thought the 14th Amendment meant. The fact that Congress passed legislation the following year to put in place the type of process Chase called for is further evidence, he said.

That 1870 law was repealed long ago, and there is almost no chance that the current gridlocked Congress will pass implementing legislation now. A decision based on these grounds would effectively end the case.

There would remain a risk for Trump: there is still an anti-insurrection law, which provides that anyone convicted is excluded from office. But Trump has not been charged under that law.

A Trump exception?

For Trump lawyer Jonathan Mitchell, a ruling based on these grounds would be a partial victory, but the former president could risk future challenges.

The question of whether Trump qualified “could come back with a vengeance” after the election, warned Murray, the attorney challenging it.

“Ultimately, members of Congress may have to decide after a presidential election whether President Trump wins, whether or not he is disqualified from office, and whether to count the votes cast for him,” he said. Murray said.

To end the matter once and for all, Mitchell urged the court to rule that Trump was never an “officer of the United States” and is therefore exempt from the 14th Amendment’s ban.

Mitchell insisted that these words have a specific technical meaning in the Constitution: “‘Officer of the United States’ refers only to appointed officials,” not elected officials like the president, he told the justices. .

Some prominent legal scholars have scoffed at this, arguing that the Constitution should be read as a normal person would read it, not as a “secret code,” as a recent law review article puts it.

Mitchell’s argument also faced objections from some justices.

As Sotomayor noted, the argument seems like “a somewhat distorted rule” because it would only benefit Trump: Alone among presidents, he has never been an appointed federal official, a member of Congress or a state representative before his or her election.

“It seems strange that President Trump is falling through the cracks, in a way,” Mitchell conceded. But, he insisted, this is what the wording of the amendment requires.

Is the presidency covered?

Jackson raised a related question: Is the presidency one of the positions the amendment prohibits an insurrectionist from holding?

The first words of Section 3 list specific offices from which an insurrectionist would be excluded, she noted. It includes senator, representative and member of the electoral college but never mentions the president. This may have been deliberate, because the authors of the 14th Amendment primarily sought to prevent “the South from rising again” by excluding former Confederates from Congress and state offices, she said.

At a minimum, the language is “ambiguous,” she said. The court could interpret this ambiguous language to allow voters to make their own decisions.

Is it too early?

Mitchell made another argument that seemed to interest some justices: The amendment says insurrectionists cannot “hold any office,” but does not say they cannot run for office.

This is important because Congress could vote before Inauguration Day to lift the disqualification. By excluding Trump from the ballot, Colorado would effectively deprive him of his right to seek amnesty from Congress, he said.

When the justices meet Friday to discuss the case behind closed doors, they will see if they can consolidate behind any of those arguments. They are under pressure to act quickly, as the presidential campaign is well underway. If they can reach a unanimous decision, it could lower the partisan temperature of a heated election year.

Note: The content and images used in this article is rewritten and sourced from



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