San Antonio Express-News (Sunday)
Justices have 5 ways to clear Trump’s path
Now that the Supreme Court has heard arguments in the case of President Donald Trump and the 14th Amendment, it seems clear which side will win. The big question is what route the justices will take to allow him onto the ballot.
In the course of more than two hours of oral arguments Thursday, eight justices advanced at least five paths they might take to rule in Trump’s favor.
Only Justice Sonia Sotomayor seemed to seriously entertain the idea of ruling against him.
Here’s a look at where the court may end up.
What’s at issue
In December, the Colorado Supreme Court ruled that Trump was ineligible to appear on that state’s ballot because of the 14th Amendment, which was adopted after the Civil War. The amendment’s Section 3 reads:
“No person shall be a Senator or Representative in Congress, or elector of President and VicePresident, 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.”
The amendment was designed to keep 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 an oath ... as an officer of the United States” and is therefore covered by the amendment’s language.
• Based on a five-day hearing in a Colorado trial court, the attack on the U.S. Capitol on Jan. 6, 2021, was an “insurrection.”
• Trump “engaged” in that insurrection through his words and deeds.
• 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 elements.
Who gets to decide?
The argument that appeared to attract the most support among the justices questioned the state’s power to decide the case at all.
“Why should a single state
have the ability to make this determination, not only for their own citizens but for the rest of the nation?” Justice Elena Kagan asked Jason Murray, the lawyer representing the voters who challenged Trump’s eligibility. “That seems quite extraordinary, doesn’t it?”
Murray insisted that Colorado was deciding only for its citizens and its ballots. What the state did was no different from what others have done in excluding candidates who were too young to hold office or weren’t born in the United States, he said.
Kagan was clearly skeptical. A ruling upholding Colorado’s decision would have nationwide impact, she said.
“There are certain national questions where states are not the repository of authority,” she said. “What’s a state doing deciding who other citizens get to vote for for president?”
The 14th Amendment was “designed to take away powers from the states” after the Civil War, she said later, when Shannon Stevenson, the lawyer for Colorado, defended the ruling.
It would be odd for it to be interpreted to allow every state to go its own way, Kagan said.
Justice Ketanji Brown Jackson, like Kagan, among the three Democratic appointees on the court, similarly questioned the authority of states to make their own decisions on eligibility.
Why would the writers of the 14th Amendment “design a system” that would allow “different states suddenly to say, ‘You’re eligible, you’re not?’” she asked.
Chief Justice John G. Roberts Jr. said that allowing a state-bystate approach inevitably would invite a court in a conservative state to rule that President Biden was ineligible.
“Surely there will be disqualification proceedings on the other side,” he said. “I would expect … a goodly number of states will say, whoever the Democratic candidate is, ‘You’re off the ballot.’”
Must 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 the
disqualification of insurrectionists could not be used unless Congress passed specific legislation to implement it.
Chase issued that ruling, in what is known as Griffin’s case, in his role as an appeals court judge “riding the circuit,” as justices did in the 19th century. So it isn’t a binding Supreme Court precedent. But, as Kavanaugh noted, it is a guide to what at least some figures at the time believed the 14th Amendment to mean. The fact that Congress the following year passed a law to set up the sort of process Chase called for is further evidence, he said.
That 1870 law was repealed long ago, and there’s almost no chance the current, gridlocked Congress would pass implementing legislation now. So a ruling on those grounds would effectively end the case.
One risk would remain for Trump: There is still a law against insurrection on the books, and it provides that a person who is convicted is barred from office. But Trump has not been charged under that law.
A Trump exception?
For Trump’s lawyer, Jonathan Mitchell, a ruling on those grounds would be a partial victory, but the former president might risk future challenges.
The issue of whether Trump was qualified “could come back with a vengeance” after the election, warned Murray, the lawyer challenging him.
“Ultimately, members of Congress may have to make the determination after a presidential election, if President Trump wins, about whether or not he’s disqualified from office and whether to count votes cast for him,” Murray said.
To end the case once and for all, Mitchell urged the court to rule that Trump was never an “officer of the United States” and therefore is exempt from the 14th Amendment’s ban.
Mitchell insisted that those words have a specific, technical meaning in the Constitution: “’Officer of the United States’ refers only to appointed officials,” not to elected officials like the president, he told the justices.
Some prominent legal scholars have scoffed at that, saying the Constitution should be read as a normal person would read it, not as a “secret code,” as one recent law review article put it.
Mitchell’s argument also ran into objections from some justices.
As Sotomayor noted, the argument feels like “a bit of a gerrymandered rule” because it would benefit only Trump: Alone among presidents, he was never an appointed federal official, a member of Congress or a state official before his election.
“It does seem odd that President Trump falls through the cracks, in a way,” Mitchell conceded. But, he insisted, that’s what the language of the amendment requires.
Is the presidency covered?
Jackson raised a related question: Is the presidency one of the offices the amendment bars an insurrectionist from holding?
The opening words of Section 3 list the specific offices from which an insurrectionist would be barred, she noted. It includes senator, representative and member of the electoral college but never mentions the president. Perhaps that was deliberate, because the writers of the 14th Amendment were mostly focused on preventing “the South from rising again” by keeping former Confederates out of Congress and state offices, she said.
At minimum, the language has “ambiguity,” she said. The court could interpret that ambiguous language to allow voters to make their own decisions.
Is it too early?
Mitchell pressed one other argument that appeared to interest some justices: The amendment says insurrectionists cannot “hold any office” but doesn’t say they can’t run for one.
That’s important, because Congress could vote before Inauguration Day to lift the disqualification. By barring Trump from the ballot, Colorado would, in effect, preempt his right to ask Congress for amnesty, he said.
When the justices convene Friday to discuss the case behind closed doors, they’ll see whether they can consolidate behind one of those arguments. They’re under pressure to act quickly, because the presidential campaign is well underway. If they can produce a unanimous ruling, it might lower the partisan temperature of an inflamed election year.