On Amendment XIV: To Disqualify Trump
The short form, from
Marc Elias↱:
Bending the Constitution to avoid a confrontation with Trump is the antithesis of democratic rule. The Supreme Court would have never desegregated schools if conservative voices could have prevented constitutional decisions they disliked.
The longer explanation:
On Feb. 8, the U.S. Supreme Court will hear arguments in case number 23-719, Donald J. Trump v. Norma Anderson. A former elected leader of the Republican Party, Anderson is the lead plaintiff in the case seeking to disqualify Trump from the Colorado presidential ballot by virtue of his participation in the events surrounding Jan. 6, 2021.
At issue is the proper application of Section 3 of the 14th Amendment ....
.... For Trump to be disqualified from being president, a court must find that he was (1) “an officer of the United States;” (2) who previously took an oath “to support the Constitution of the United States” and (3) “engaged in insurrection or rebellion against the same.” Additionally, the courts must determine that the provision is self-executing, i.e., it does not require Congress to enact legislation under Section 5 for it to take effect.
This is a novel case. Never has a president incited a violent mob to storm the Capitol. Never has a major political party embraced a candidate who has been indicted in state and federal court for conspiring against the peaceful transfer of power. That the Supreme Court needs to hear this case speaks to the complete failure and moral bankruptcy of the GOP.
The fact that the case is unusual does not mean that it is difficult. The plain text should win the day.
The thing is, we already know two of those points: Trump took the oath, and a court has found he has engaged in insurrection or rebellion. The first enumerated point, regarding the President of the United States as an officer of the United States, is supported by the historical record, and would leave an enormous and potentially fatal weakness in the Constitution if the president is excluded. Additionally, Elias notes the question of a self-executing provision, and the actual juristic history on this point already says yes, and has been executed repeatedly in history, including in relation to the January 6 insurrection.
And toward that, there was an interesting moment when
ABC News↱ led with the prospect that Trump's disqualification "would mark an unprecedented and controversial development" while reporting a case that will be included as part of the standing precedent against Trump. Of course, even Elias understands the manner of what is unprecedented:
While we should take solace in the fact that no prior president has acted as recklessly as Trump, that is not a reason to ignore Section 3 of the 14th Amendment now. There is no exception for former presidents who are renominated. The Constitution does not care about MAGA’s feelings and nor should the Court.
And here's the thing about such definitive statements: While Elias is actually a litigating attorney who has spent the last few years wrecking election conspiracism and subversion,
i.e., clearly among the opposition to Trump, the actual facts, here, are that straightforward:
By contrast, the legal arguments against disqualification require a cramped and nonsensical reading of the provision. For example, some opponents of disqualification argue that the president is not an “officer” of the United States and that when presidents swear to “defend” the U.S. Constitution, that does not mean they will “support” it. Neither of these accord with traditional principles of constitutional interpretation.
("But her emails!")
There is a certain degree to which Americans have never settled the difference between defending and supporting the Constitution because it was presupposed that nobody would need to.
To the other, it may sound less radical to suggest, as Elias reviews, "that, however misguided Trump’s behavior was on Jan. 6, it did not rise to the level of insurrection or rebellion", but that threshold is already achieved. Part of the process along the along the way includes a court actually finding that Trump conducted himself in a manner reasonably described as insurrection. Elias might be opposition, for instance, but his statement that, "The U.S. Supreme Court has no independent basis to disturb that factual finding", is not only accurate, but has particular meaning: In order for the Supreme Court to find in Trump's favor, they will need to blaze that trail, themselves; the pathway does not exist, but the current majority is already known to invent doctrine on demand, so we'll have to see what they come up with.
The question of self-execution, for instance, is itself extraordinary inasmuch as the we already know the answer; Section Three has already been effected without explicit subsequent Congressional legislation. Elias suggests "there is no legal reason supporting" a question he describes as a "convenient dodge". "Tellingly", he suggests, "none of the 14th Amendment’s other, better known, provisions require a separate congressional enactment." And there is also this:
Section 3↱ does include a particular requirement for explicit Congressional action, that
"Congress may by a vote of two-thirds of each House, remove such disability."
Elias continues:
To fill in the gaps of these weak legal arguments, a series of pseudo-legal claims have started to take hold. Proponents of keeping Trump on the ballot insist that strict adherence to the disqualification clause would damage democracy. At a minimum it would enrage his supporters and deny Republicans the ability to elect their candidate of choice. At its worst, they argue, disqualifying Trump would entangle the Court in politics and damage its credibility.
None of these are objections based on the law or Constitution.
And the thing is, what it comes down to is that, once again, we must weigh the Republic itself against how a particular political faction feels. That is to say,
Republicans v. Republic, as it happens.
Thirty years ago, what "damaged democracy" and "enraged" Republicans was that the courts refused them "the ability to elect" the exclusion they preferred. Since at least the early nineties, conservatives have been upset that they cannot simply vote to banish what offends their religious or personal aesthetics. And their outrage is not simply the result of their own misunderstanding, but
depends on misunderstanding.
Because, here we come to the short form: "Bending the Constitution to avoid a confrontation with Trump is the antithesis of democratic rule." And as much as that might sound melodramatic, it is also the circumstance before us, and one with long prelude. And if this somehow politicizes the court—
As for politicizing the court, we must recognize the difference between the Court deciding cases with political implications and the Court becoming politicized. The Supreme Court routinely decides cases with profound political and electoral consequences.
—we might consider how the question arises: "If the goal," Elias explains, "is to prevent the courts from deciding cases with political implications, that ship has sailed."
Or, rather, here's the thing about entangling the Supreme Court in politics that could damage its credibility:
The way the Court can be nonpolitical in this case is simply to follow the Constitution rather than right-wing social pressure. Applying Section 3 of the 14th Amendment to disqualify Trump is a judicial act, not a political one. Ignoring the plain text of the Constitution because the Court fears the consequences would be an act of judicial abdication that will reinforce the belief that the Court is hopelessly political.
Which brings us to the looming question. The cynic might wonder what the Supreme Court will come up with to save Trump, but a more direct question is whether
this is an issue on which the Court will buckle under the weight of conservative hurt feelings. But this so straightforward that the answer is as plain as the words. Indeed, it is so straightforward that such a question simply should not be.
The words out front on the Supreme Court read, "Equal Justice Under Law". As Elias puts it, "Donald Trump is entitled to that inscription as is every other citizen of this country. We should expect and demand nothing less."
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Notes:
"14th Amendment". (1868) Constitution of the United States of America. 1992. Law.Cornell.edu. 5 February 2024. https://bit.ly/2s1qIvl
Elias, Marc. "Disqualifying Trump Is on the Docket". Democracy Docket. 31 January 2024. DemocracyDocket.com. 5 February 2024. https://bit.ly/42vBgV9
Landers, Liz. "Official removed from office under 14th Amendment speaks out as Trump case looms". ABC News. 8 September 2023. ABCNews.Go.com. 5 February 2024. https://bit.ly/3w5QWT6
