Will Trump Be Disqualified?

Since the Colorado Supreme Court ruled, late last year, that Donald Trump can be disqualified from the 2024 presidential ballot, nearly everyone on the left and right has already decided that the ruling is obviously right or obviously wrong, respectively. In fact, both the law and the facts are unclear.

CHICAGO – This week, the US Supreme Court will hear oral arguments on Donald Trump’s appeal of the Colorado Supreme Court’s decision disqualifying him from the ballot for the 2024 presidential election. The Colorado court based its decision on Section 3 of the US Constitution’s Fourteenth Amendment, which bars from federal and state office anyone who, having sworn to uphold the Constitution, engages in insurrection. Nearly everyone on the left and right has already decided that the ruling is obviously right or obviously wrong, respectively. But the truth is that both the law and the facts are unclear, which means the Supreme Court justices’ political acumen will be tested like never before.

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Start with the question of whether Trump engaged in “insurrection,” the resonant but undefined core of Section 3. One view is that he did so by orchestrating a mob attack on the Capitol on January 6, 2021, while Congress was trying to certify the election results. Another is that Trump gave aid and comfort to the insurrection by failing to call in the troops to quell it, and by waiting hours before telling his supporters to go home.

But it is not clear that he called for violence (“fight like hell” is an all-too-trite expression in the American vernacular), and it is unlikely that he expected the Capitol police to be overrun. Moreover, the president’s executive power is normally understood to be discretionary. It would be very unusual for a court to find that presidential inaction, as opposed to action, violated the constitution.

The trial court in the Colorado case noted that Section 3 does not explicitly apply to the president. It applies, rather, to electors of the president, suggesting that the drafters trusted the electors to choose the president even if they did not always trust the people to choose the electors – a view shared by America’s founders. Some critics have ridiculed this argument, noting that Section 3 also applies to “officers of the United States,” which surely describes the president. And yet, other clauses of the Constitution distinguish the president from officers of the US, as have judicial opinions over the years.

Faced with these and similar conflicting arguments that turn on the vagaries of language and understandings lost to history, the Supreme Court cannot plausibly resolve the case by the sort of narrow legalistic analysis that courts often use. As they have in nearly every major case, the justices will have to account for larger problems of constitutionalism, politics, and the public good, giving careful thought to the possibility of a popular backlash at a time when the Court’s public support has waned.

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