The decision this week by the Colorado state Supreme Court to disqualify former President Donald Trump from the state’s ballot(s) — a ruling that is likely to be overturned by the Supreme Court of the United States — has brought out a dispiriting amount of “motivated reasoning” from the Colorado ruling’s supporters among both the left and the anti-Trump right.
From the left, though not the furthest left, Sen. Chris Coons, a Democrat of Delaware who holds the same Senate seat kept warm for decades by one Joe Biden since the sinking of the USS Maine, pronounced on CNN that “we should all be encouraged by any action that makes it less likely that [Trump] will return to the presidency.”
Coons, like every senator, takes an oath of office to “support and defend the Constitution of the United States” (you know the rest). How is a free country built on the rule of law to survive when the most important oath in the nation is so easily abandoned when in service of a favored political outcome?
Coons went on to say that the ruling represented a plain reading of the 14th Amendment. Now I’m not saying with certainty that the Colorado court’s ruling is wrong — though I strongly believe that it is and have bet money on it, about which more later — but to say that the 14th Amendment is clear on key issues in this case is nonsense.
Trump Hasn’t Been Properly Charged With Insurrection
A moment of personal privilege: Lest readers protest that I am engaging in motivated reasoning myself, I would note that I voted for Trump in 2020 (as much a vote against the execrable and ridiculous Kamala Harris and what I thought she represented about a potential Biden administration — an analysis that has proven prescient), but, since Jan. 6, 2021. I have become “Never Trump.” I know many readers of these pages will tsk-tsk, or perhaps swear, at me for that, but so be it. My point today is that I do not argue against the Colorado court’s ruling because of a desire to help Donald Trump. I do so out of a desire to protect the rule of law and the further politicization (and, just as dangerous, the public perception of politicization) of the nation’s most important courts.
So back to the 14th Amendment. There are at least three issues that are unclear, despite the claims of Coons and others, including the Colorado courts. First, who decides whether somebody “engaged in insurrection”? Can it be a single state judge? A 4–3 majority of state justices, all nominated by Democrats? (The lower court judge in the case that the Colorado Supreme Court then heard did rule that Trump engaged in insurrection, and the higher court affirmed that.) (READ MORE: Colorado Geniuses Ban Trump to Prove US Elections Are Fair)
Yet the U.S. Senate did not convict Trump on House impeachment charges of “incitement to insurrection,” which, as I said at the time, were the wrong charges because they were far too difficult to prove, whereas charges like dereliction of duty on that fateful day were obvious — even to Sean Hannity and Trump’s own children. And, more importantly given that impeachment is a political process rather than a legal one, not only did the Trump-hating federal prosecutor Jack Smith not charge Trump with any crime of insurrection, but he did not charge anybody, even those who entered the Capitol through force, with insurrection. (Some suspect that Smith will do that now to try to influence SCOTUS; I’m skeptical of that.)
So, now, is a single judge taking limited testimony with the Trump team not permitted to subpoena witnesses, or a bare majority even of a highly partisan court, to do what the Senate couldn’t and a federal prosecutor wouldn’t — and with Smith likely knowing that he could not prove insurrection to a jury beyond a reasonable doubt? And is the determination of “engagement in insurrection” properly done by any state-level entity versus a federal jury or, at the very least, the highest level of federal judges/justices?
Does Section 3 Apply to the President?
The second point on which the 14th Amendment is unclear, pace Chris Coons, is whether the relevant section (Section 3) even applies to a president. Again, I am not saying the answer is definitive in favor of Trump, but it is certainly not definitive against him.
Here is the entire section:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, 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 wording of the section is striking for how it is not obvious that it includes the president. I don’t know why those who wrote the amendment would not have wanted to include the president, but you’d think that if they did, then it would be clear. Instead, it names almost every person short of law enforcement who takes an oath to the Constitution — while excluding explicit mention of the president and vice president, unless they were to be included in the term “officer of the United States.”
There is strong evidence elsewhere in the Constitution that officers are people appointed by elected executives (e.g., presidents and governors) but that the elected president is not himself an officer. One example of several comes from Article II of the Constitution, which creates and defines the presidency. Section 4 states that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This strikes the rational as clear evidence that the president and vice president are not “civil Officers of the United States”; if they were included in that group, the framers would either have left out specific mention of both or written “and all other civil Officers.” (The lower court Colorado judge ruled that the 14th Amendment did not apply to a president, and the higher court overturned that.)
As if that weren’t enough, law professor Kurt Lash notes in a recent analysis that prior drafts of the amendment included specific mention of the president, but those were deleted before vote and passage.
The bottom line is that it is not nearly as clear as one might think, based on common 21st-century usage of the term “officer” as head of a corporation, that the president is covered by this section of the 14th Amendment.
A Bet Against Colorado
Lastly, for this relatively brief analysis, is the unclear question of whether the relevant section of the 14th Amendment can be enforced absent specific action by Congress to define the procedure. In 1869, Salmon P. Chase, chief justice of the United States (although then writing for a lower court at a time when SCOTUS justices had duties to “ride circuit”) wrote in a lawsuit called Griffin’s Case that Section 3 is not self-executing, namely, that in order to enforce it — and I’m slightly oversimplifying here — Congress would need to pass a law saying how it would be done. In fact, it seems that nobody who supports Colorado’s ruling has noticed Section 5 of the 14th Amendment, which says, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Some legal scholars argue that Chase was wrong in Griffin’s and, further, that, as he was writing at the time as a circuit court judge rather than for SCOTUS, the ruling is not precedent. Yet it remains one of the few on-point federal court rulings about this rarely used section of our Constitution. And it was written by a chief justice. Again, I am not claiming that it is certainly true that, absent an act of Congress subsequent to the passage of the amendment, disqualification cannot be enforced (especially when it comes to, as Chase noted, enforcement of its provisions against future possible disqualified officeholders or office-seekers as opposed to those immediately disqualified in the aftermath of the Civil War). Maybe that’s right; maybe it’s not. My point is simply that those claiming that the Colorado ruling represents a plain reading of the Constitution are wrong (or lying).
I close with a prediction: The Supreme Court of the United States will find a way to overturn the Colorado court without reaching the merits on most of the hardest questions. It is habit of our highest court to dispense with cases on procedural grounds when such grounds are available and to avoid the thornier questions even when many of us would much prefer clarification. But I suspect SCOTUS will rule that something like federal supremacy applies and that state courts or other non-federal entities cannot disqualify a candidate for federal office. It may also lean on Section 5 as noted above.
That would also be a potentially graceful way for Chief Justice John Roberts, who cares deeply (sometimes too deeply) about the reputation of the institution as he perceives it, to cobble together a unanimous opinion, making it much more difficult for critics, especially on the left, to point to the ruling as an example of the court’s partisan bias. Moving further into the merits — such as discussing if Trump engaged in insurrection or even if a president is an officer of the United States — would spread division that would be unhelpful both to the court and to the nation, although it would certainly be an entertaining and insanely divisive national conversation-starter — exactly what Roberts will want to avoid.
I made a bet with Ilya Somin, a non-leftist professor of constitutional law whose work I respect and normally agree with, who believes that if SCOTUS overturns Colorado at all, there will be at least 3 votes to uphold. Meaning that I bet $100 that SCOTUS will not just overturn the ruling but that it will do so by a vote of no less than 7–2 (and I would not be surprised by 9-0). For the reasons above and more, I’m feeling fairly confident. Maybe even as confident as Chris Coons.
