Commentary

Supreme Court justices could leave nation vulnerable to enemies within

Former U.S. President Donald Trump appears on a video screen above members of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on July 12, 2022, in Washington, D.C. (Kevin Dietsch / Getty Images)

A year ago, few thought the disqualification clause of the 14th Amendment could be much of a factor in the 2024 election. But now that U.S. Supreme Court justices have heard oral arguments in the case over whether former President Donald Trump is eligible to run for public office, questions about the provision are central to the presidential race and the future of the republic.

“This is the biggest case before the Supreme Court in decades,” Mario Nicolais, an attorney for the plaintiffs in the case, told Newsline this week. Referring to Bush v. Gore, the Supreme Court ruling that effectively decided the 2000 presidential election, he added, “This is arguably bigger, because it involves questions about the survival of our democracy.”

The case comes out of Colorado, but the outcome will have profound consequences for the nation.

It started in September, when plaintiffs, pointing to the Jan. 6 attack on the U.S. Capitol, filed a lawsuit arguing Trump is disqualified under Section 3 of the 14th Amendment, which bars anyone who took an oath to uphold the Constitution and then “engaged in insurrection or rebellion” from holding office in the United States. Justices on the Colorado Supreme Court agreed, and a majority said Trump was therefore barred from the presidential primary ballot in Colorado.

The U.S. Supreme Court took the case on appeal and heard oral arguments Thursday. Most of the justices appeared reluctant to affirm the Colorado ruling, and the court is likely to reverse it, which would leave the country exposed to the kind of threat Section 3 was intended to counter.

The court could rule that Section 3 is not “self-executing” and no state can apply it unless Congress passes enabling legislation. Or it could rule that Section 3 doesn’t apply to presidents or the presidency. Any ruling of this sort could allow Trump — who led “a coup in search of a legal theory” and has said he’ll rule as a dictator upon reelection — to remain on the presidential ballot.

In an amicus brief filed with the Supreme Court, a trio of election law experts said there is strong potential for civil unrest and violence that could result from lingering questions of Trump’s eligibility. The authors, Edward B. Foley, Benjamin Ginsberg and Richard L. Hasen, implored the justices to decide quickly and decisively whether Trump is disqualified, since failing to do so “would risk catastrophic political instability, chance disenfranchising millions of voters, and raise the possibility of public violence before, on, and after November 5, 2024.”

Hasen honed this warning in a piece published Thursday following the Supreme Court hearing: What if Trump is permitted to remain on the ballot and he wins the Electoral College, but Democrats take control of Congress and decide to enforce Section 3 on Jan. 6, 2025, when they meet to certify the vote? A ruling that allowed for such a scenario ​​”would risk political instability and even violence,” Hasen wrote.

The case can seem arcane. Discussions of it are weighed down by debates about history, the meaning of texts, legal precedent, political motivation and the nature of Jan. 6, all amid the most divisive election cycle in memory.

But at its core, the matter is simple. The framers of Section 3 — with a rebellion that cost more than 600,000 lives fresh in mind — created a shield to protect public offices from enemies who had betrayed the Constitution. The provision was crafted not just for Confederate figures but also “the leaders of any rebellion hereafter to come,” in the words of a U.S. senator at the time. There was no way Jefferson Davis should be deemed qualified for the U.S. presidency after the Civil War, and the Colorado plaintiffs argue that there is no way Donald Trump should be deemed qualified for the U.S. presidency after Jan. 6.

If the Supreme Court justices disagree, they will strip Americans of one of the few legal means available to combat enemies within.

“This is bigger than just one election,” Nicolais said. “This is: How do we protect our democracy, and what does it mean?”

The Supreme Court might rule that Section 3 requires congressional action to make it enforceable and that it doesn’t apply to presidents. But that would leave unanswered the fundamental question of how the nation can bar enemies like Trump from positions of public trust.

Americans who lived through the Civil War thought they provided an answer in Section 3, but Supreme Court justices appear to be poised to reject their wisdom.

Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: [email protected]. Follow Colorado Newsline on Facebook and Twitter.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site.