Sunday, February 25, 2024

Opinion: The Supreme Court seems likely to let Trump run. It will have to ignore the Constitution

Two apparently contradictory impressions emerged from nearly three hours of oral argument Thursday before the Supreme Court: The case for Donald Trump’s eligibility to be president was quite weak, but the Supreme Court is expected to rule in his favor.

Based on the questions raised by the justices, it’s hard to imagine that five of them would agree with Colorado’s decision to bar Trump from running for president as an insurrectionist under the 14th Amendment.

The question before the court is whether Trump is disqualified from the presidency because of Section 3 of the amendment, which provides that no office holder who “has engaged in insurrection or rebellion against” the country “shall be a senator or representative in Congress, or an elector of the president and vice president, or occupy a function, civil or military, under the law.” UNITED STATES.”

The pleadings focused mainly on three issues. First, does Section 3 require that a law passed by Congress be enforced? Several justices indicated they supported the view that the provision is not “self-executing” and cannot be enforced without a federal law. Justice Brett M. Kavanaugh, for example, said the “original public sense” was that a law was needed to implement this section.

This argument is seriously flawed. For starters, this provision does not need a law to enforce it, nor do other constitutional presidential qualifications, which include being at least 35 years old, being a natural-born citizen, and not having previously fulfilled two mandates.

Additionally, the amendment clearly defines Congress’s role here: its final sentence gives lawmakers the authority to exempt an insurrectionist from this provision. But the amendment does not require congressional action to implement the section.

It is important to note that the Supreme Court declared in 1883 that the 14th Amendment is “definitely self-executing without any ancillary legislation. The main contrary authority, cited by Trump lawyer Jonathan Mitchell and relied upon by Kavanaugh, is not a Supreme Court decision but an 1869 opinion by Chief Justice Salmon Chase for a lower appeals court. As Justice Sonia Sotomayor pointed out, Chase later reached the opposite conclusion, holding that no law was required for disqualification and that Jefferson Davis, the President of the Confederacy, was clearly disqualified from the presidency of the UNITED STATES.

A second issue that figured prominently in the oral argument is whether Section 3 applies to the President of the United States or only to other federal offices. Although they are ideologically opposed, Justices Neil M. Gorsuch and Ketanji Brown Jackson both focused on the section’s list of several offices without mentioning the president.

The problem with this argument is that Section 3 also speaks of “any function, civil or military.” The Constitution repeatedly refers to the president as an officer. As the Colorado Supreme Court explained, senators, representatives, and electors are listed as members of elected bodies that are not considered officers under the Constitution. But the President is an officer of the United States included in the expression “any office.”

The Court’s conservatives pride themselves on adhering to the original meaning of the Constitution, and those who drafted and ratified the 14th Amendment undoubtedly considered Section 3 to apply to the president. This was explicitly stated in the Senate.

Gorsuch also noted during the discussion that Section 3 only prohibits insurrectionists from being president, not from running for office. But it’s an absurd distinction that could lead to questions about whether Trump is only disqualified after his election, a nightmare scenario.

The third question that occupies much of the debate is whether Trump actually participated in an insurrection. Justice Samuel A. Alito Jr. questioned the evidence, while Kavanaugh noted that the former president had not been convicted of insurrection. But a Colorado court held a five-day hearing on the issue at which Trump could have testified, after which the judge concluded that he had indeed participated in an insurrection. And nothing in Section 3 or its history requires a criminal conviction.

Another pair from different ends of the Court’s ideological spectrum, Justices Elena Kagan and Amy Coney Barrett, questioned whether a state court should be able to make such a decision. But each case must begin in one state. Ultimately, it’s not so much about a state deciding as it is about the U.S. Supreme Court looking at the facts and the law – as courts always do – and deciding whether Section 3 disqualifies Trump.

This case gives the court an opportunity to show that it respects the law and the facts, not just the political preferences of the judges. My feeling, from the pleadings, is that we will have reason to be disappointed once again on this point.

I hope I’m wrong. If the court ignores the plain language and meaning of the 14th Amendment, it will be a loss to the Constitution and the country.

Erwin Chemerinsky is an Opinion contributing writer and dean of the UC Berkeley School of Law. His latest book is “Worse than nothing: The dangerous error of originalism.

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



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