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Trump's 14th-Amendment Disqualification
Dec. 20th, 2023 08:28 pmA court in Colorado ruled that Donald Trump had "taken an oath ... to support the Constitution of the United States", and had subsequently "engaged in insurrection or rebellion against the same", but that he wasn't disqualified from the Presidency under the 14th Amendment, section 3, on the bizarre grounds that the President of the United States is not "an office, civil or military, under the United States". The Supreme Court of Colorado agreed with the first two statements but not the third, thereby disqualifying him from serving as President, so it would be silly to put his name on primary or general-election ballots. Naturally, the case has been appealed to the US Supreme Court.
In the long run, I'm pretty sure the best outcome for the US would be for Donald Trump to be resoundingly beaten at the polls, again. Disqualifying him from even appearing on ballots feels like an unsatisfying way to beat him... but it is what the law says, and we're supposed to obey the law in this country. He did indisputably swear an oath to the Constitution at his inauguration as President, which is obviously an office of the United States. Every sane person knows he incited and encouraged a (lightly) armed assault on the US Capitol to intimidate Congress into overturning the already-cast electoral votes and declaring him the winner of an election he had actually lost, in addition to coordinating fake electors in several states, pressuring state election officials to falsify results, etc. If using mob violence to prevent the lawful President-elect from taking office doesn't count as an "insurrection or rebellion", I don't know what does. So in any sane, law-abiding world, he would be disqualified from office.
Except... the Colorado case was decided by a handful of judges, in response to a civil case where the standard of proof is "the preponderance of the evidence" and (IIUC) Trump wasn't even a party to the suit. Notably, he has never (yet) actually faced trial, much less been found guilty, for the actions that seem so obviously to constitute insurrection. That feels like rather a flimsy basis for deciding who can and who can't be President; I wouldn't want some Republican judge in Pennsylvania to disqualify a leading Democratic candidate that easily. Although apparently several of the 14th-Amendment disqualifications after the Civil War were decided by state courts in civil cases, without criminal trials, so it's not completely unprecedented; what's unprecedented is applying it to a former President and current Presidential candidate. Unfortunately, the 14th Amendment doesn't say anything about the process of deciding who should be disqualified, only the criteria. So if SCOTUS wants to overturn the Colorado decision, it has reasonable grounds to do so.
Or SCOTUS could overturn the Colorado decision on less-reasonable grounds, noting the literal text of the 14th Amendment that specifies its application to Senators, Representatives, and Presidential Electors, and "any office, civil or military, under the United States, or under any State" without specifically mentioning the Presidency or Vice Presidency. It beggars belief to suggest that the authors of the 14th Amendment intended that insurrection could get you disqualified from being a member of Congress, but not from being President, and it likewise beggars belief to suggest that the Presidency isn't an office under the United States. But there are some awfully strict literalists on SCOTUS at the moment.
Or SCOTUS could dodge the case by saying "it's not our business how individual states decide who's allowed to be on their ballots", allowing Colorado to keep him off the ballot without affecting any other state. Since Colorado wasn't likely to vote for him anyway, it wouldn't cost him any electoral votes. Likewise if New York or California disqualified him from the ballot; he'd lose a few million popular votes, but that and four bucks will get you on the subway.
The least likely outcome, of course, is that SCOTUS agree with the Colorado Supreme Court and thereby disqualify Trump from appearing on ballots nationwide. Arguably the legally correct answer, but there would be rioting in the streets.
In the long run, I'm pretty sure the best outcome for the US would be for Donald Trump to be resoundingly beaten at the polls, again. Disqualifying him from even appearing on ballots feels like an unsatisfying way to beat him... but it is what the law says, and we're supposed to obey the law in this country. He did indisputably swear an oath to the Constitution at his inauguration as President, which is obviously an office of the United States. Every sane person knows he incited and encouraged a (lightly) armed assault on the US Capitol to intimidate Congress into overturning the already-cast electoral votes and declaring him the winner of an election he had actually lost, in addition to coordinating fake electors in several states, pressuring state election officials to falsify results, etc. If using mob violence to prevent the lawful President-elect from taking office doesn't count as an "insurrection or rebellion", I don't know what does. So in any sane, law-abiding world, he would be disqualified from office.
Except... the Colorado case was decided by a handful of judges, in response to a civil case where the standard of proof is "the preponderance of the evidence" and (IIUC) Trump wasn't even a party to the suit. Notably, he has never (yet) actually faced trial, much less been found guilty, for the actions that seem so obviously to constitute insurrection. That feels like rather a flimsy basis for deciding who can and who can't be President; I wouldn't want some Republican judge in Pennsylvania to disqualify a leading Democratic candidate that easily. Although apparently several of the 14th-Amendment disqualifications after the Civil War were decided by state courts in civil cases, without criminal trials, so it's not completely unprecedented; what's unprecedented is applying it to a former President and current Presidential candidate. Unfortunately, the 14th Amendment doesn't say anything about the process of deciding who should be disqualified, only the criteria. So if SCOTUS wants to overturn the Colorado decision, it has reasonable grounds to do so.
Or SCOTUS could overturn the Colorado decision on less-reasonable grounds, noting the literal text of the 14th Amendment that specifies its application to Senators, Representatives, and Presidential Electors, and "any office, civil or military, under the United States, or under any State" without specifically mentioning the Presidency or Vice Presidency. It beggars belief to suggest that the authors of the 14th Amendment intended that insurrection could get you disqualified from being a member of Congress, but not from being President, and it likewise beggars belief to suggest that the Presidency isn't an office under the United States. But there are some awfully strict literalists on SCOTUS at the moment.
Or SCOTUS could dodge the case by saying "it's not our business how individual states decide who's allowed to be on their ballots", allowing Colorado to keep him off the ballot without affecting any other state. Since Colorado wasn't likely to vote for him anyway, it wouldn't cost him any electoral votes. Likewise if New York or California disqualified him from the ballot; he'd lose a few million popular votes, but that and four bucks will get you on the subway.
The least likely outcome, of course, is that SCOTUS agree with the Colorado Supreme Court and thereby disqualify Trump from appearing on ballots nationwide. Arguably the legally correct answer, but there would be rioting in the streets.
