Donald Trump Meets the Supreme Court

By Peter J. Wallison

With Donald Trump moving ever closer to attaining the Republican nomination for President, the Colorado Supreme Court’s decision to remove him from the state’s ballot under Section 3 of the 14^th Amendment has assumed greater significance. The US Supreme Court has apparently recognized this, immediately accepting Trump’s appeal of the Colorado decision and setting oral argument for February 8.

This quick response may also signal that the US Supreme Court sees the case as more important than political specialists had expected. For example, if the Court might decide that Trump is disqualified for the presidency, it would be important for that decision to be made as early as possible in the year.

From the outset, many lawyers and non-lawyers alike have refused to believe that Section 3 of the 14^th Amendment could result in Trump’s disqualification, largely because of his popularity with the Republican base and the idea that our democracy is based on the belief that the people should elect whom they please.  Moreover, the provision on which his disqualification rests has been used only occasionally since the Civil War era and never tested in the Supreme Court. Finally, three members of the Court were appointed by Mr. Trump during his first term, and at least three others are considered conservatives appointed by prior Republican presidents.

But the Supreme Court answers to the Constitution, and not to the former political loyalties of those who have been appointed as Justices. A good example is the 1952 case Youngstown Sheet & Tube v. Sawyer, in which, during the Korean War, President Truman directed his Secretary of Commerce to seize the US steel mills in order to assure adequate steel for wartime needs.

Truman argued that he had inherent power as commander in chief under the Constitution to assure essential military supplies. Four of the nine members of the Court at the time, including the Chief Justice, had been appointed by Truman and the remaining five had been appointed by President Roosevelt, his Democratic predecessor. Yet, 6-3, the Court refused to endorse Truman’s order on the ground that the Constitution did not give the president the power he claimed, pointing out that no one is above the law.

What’s more, Donald Trump and his supporters are far from a normal political movement in the United States. Not only has Mr. Trump defied the law in several cases for which he is now being criminally tried, but he has seemed to gain support from his backers in spite of his indictments. Recently, he told the U.S. Court of Appeals for the D.C. Circuit that he believes he would have the power as President to direct Seal Team Six to kill a political opponent, and could not be tried for that crime unless he is first impeached and convicted before leaving office. This is a gross misreading of the Constitution, but Imagine the House and Senate voting impeachment for and convicting a President who claims the unrestricted power to kill them.

In 2021, Trump tried unsuccessfully to overthrow the Constitution—or at least the constitutional means for electing a president—by pressing his Vice President to set aside the electoral votes of several states that Mr. Trump falsely claimed he had won in the 2020 election. This, without question was an insurrection or rebellion against the Constitution, the very language that Section 3 forbids. Fortunately, Vice President Pence refused to follow Mr. Trump’s directions, and made sure that the ballots were counted properly for Joseph Biden.

If they had been counted as Mr. Trump demanded, neither he nor Mr. Biden would have had a majority of the electoral votes, allowing Trump to claim that he had not lost the election and remained president until the controversy was resolved. He might even have claimed the right to remain in the White House until that resolution occurred.

To enhance his false claim, and add to the pressure on the Vice President, Trump had even summoned thousands of his supporters to Washington that day, January 6, 2021, and directed them to support his claim with a demonstration outside the Capitol when the electoral votes were to be counted by Vice President Pence. We all know what happened after that.

Accordingly, Section 3 of the 14^th Amendment seems particularly apt for application to Mr. Trump. Having taken an oath to “preserve, protect and defend” the Constitution” when he was inaugurated for his first term, he violated that oath through his efforts in 2021 to overturn the Constitution’s electoral system. This places him squarely in the same group of secessionists who were the target of Section 3 of the 14^th Amendment.

Here is the full text of Section 3:

“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 vote of two-thirds of each House, remove such disability.”

To disqualify him, the Court will have to answer at least three questions which have been debated in public since the Supreme Court of Colorado found Mr. Trump ineligible for the Colorado ballot: (1) Although Section 3 makes no reference to the President or the presidency, does Section 3 actually cover the President of the United States? (2) Did Mr. Trump engage in an “insurrection?” and (3) Is it consistent with our democracy that a popular candidate for President can be disqualified by Section 3?  None of these questions is likely to be difficult for the Supreme Court .

1.      Does the language of Section 3 actually cover Mr. Trump as President?  

Although the language of the Section does not mention the president or the presidency, this was not necessary for a variety of reasons. First, the paragraph begins with the words “No person.” Those words without doubt cover the President, because he is of course a “person.” The next question is whether that “person” -–in this case the President-- “hold(s) any office, civil or military, under the United States”? The presidency would certainly seem to be an “office, civil or military under the United States” and if this is so, the President is covered because he holds an office under the United States.

There are many places in the Constitution where the fact that the presidency is an “office” under the Constitution is confirmed, but my favorite is the last sentence of Article VI—one of the most important statements in the entire document: “no religious Test,” it says, “shall ever be required as a Qualification to any Office or public Trust under the United States.” If the presidency is not an “office under the United States” then there can be a religious test for holding it—an absurd idea that no one would seriously argue.

But the Trump brief argues at length that there is a difference between the holder of an “office” like the presidency under the Constitution and the term “an officer of the United States” as used in Section 3. The basis for this argument is that the Constitution’s Article II Section 2 says that the president “shall appoint…all other officers of the United States,” and the President can’t appoint himself. Therefore, the President is not “an officer of the United States.” The flaw in this argument is that the text goes on to say (after “all other officers of the United States”) “whose Appointments are not herein otherwise provided for.” The President’s appointment, of course, is provided for in the Constitution through the operation of the electoral college. In the past, as many scholars have noted, the terms “elected” and “appointed” were used interchangeably. This is consistent with previous Supreme Court precedents.

 That should settle the question whether the presidency is covered by the term “office under the United States.”  It clearly is, and thus the presidency is covered by the language of Section 3 even though the office of the presidency is not specifically mentioned.

This certainly is what the Supreme Court will conclude.

2.      Did Mr. Trump engage in “insurrection”?

Much has been made of this question, again without the close reading of Section 3 that is necessary. The relevant language is the following: “No person…who, having previously taken an oath…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.”

Notice that the highlighted terms “the same” and “enemies thereof” refer to “the Constitution of the United States” and not the United States or its government. In other words, all the controversy about whether the riot at the Capitol was led by Mr. Trump or was an “insurrection” against the government is irrelevant. The insurrection described in Section 3 is an insurrection against the Constitution—words on parchment, if you will—and the same is true of giving “aid and comfort to the enemies thereof.” That phrase also refers to the Constitution.

In other words, it doesn’t matter whether Mr. Trump was ever indicted for or convicted of an “insurrection” against the United States. The relevant language of Section 3 charges him with an insurrection against the Constitution, and it is the meaning of those words that determines the applicability of Section 3 to Mr. Trump’s actions.

What is an insurrection or rebellion against the Constitution? Section 3 was written over 150 years ago, and words we use today might have had a different meaning then. A majority of the members of today’s Supreme Court are “originalists,” who seek to establish the true meaning of words in statutes and other documents that were drafted at an earlier time. These justices will have to establish what the drafters of Section 3 meant by an “insurrection” or a “rebellion” against the Constitution or giving “aid or comfort to the enemies” of the Constitution.

Without the need to decide the factual question whether the riot at the Capitol on January 6, 2021 was or was not an “insurrection,” the Supreme Court should have no difficulty in deciding that Trump was engaged in some kind of activity on January 6  which qualified as an insurrection against the Constitution.

3.      Finally, is it consistent with our democracy to remove from electoral competition a person like Mr. Trump, who has a substantial political following?

Immediately after the Supreme Court of Colorado declared that Section 3 disqualified Mr. Trump from the presidential ballot in Colorado, many commentators declared that it would be inconsistent with our democracy for this to occur.

There is an answer to this: the United States is a constitutional democracy; under the Constitution, the people have the right to vote for their leaders, but only within rules the Constitution sets out. For example, the people cannot vote for someone as president who was not born in the United States, or for someone who has not reached the age of 35 years.

After the Civil War, however, these limitations were not sufficient. Congress feared that Confederate sympathizers would win elections in the Union, or in some of the states, and in effect reverse the victory the Union had won.

Section 3 was Congress’s answer, but it was limited, applying only to people who had previously taken—and violated—an oath to support the Constitution. Others, even though they might have been confederate sympathizers, were still able to hold the highest offices in the Union or in any state. This was a compromise in Congress, but it makes clear that some people were not eligible for office in the Union, no matter how popular they were.

This was a constitutional democracy protecting itself—in this case from a person or persons who are so untrustworthy that their oaths were worthless.

It happens that Section 3 applies to Mr. Trump, because he took an oath to support the Constitution when he was inaugurated as President in 2017, and violated that oath by attempting to overthrow the Constitution’s electoral principles in 2021. He does not even have to be convicted of that; he has already admitted that he tried to change the electoral rules in 2021, but argues that he was only doing what he was required to do as President. It is likely that the Supreme Court will find otherwise.

For the reasons stated earlier, Mr. Trump poses a particular risk for this country, and it is fortuitous that his case falls within the terms of a constitutional amendment that Congress enacted over 150 years ago to protect the United States against unscrupulous people who would violate their oaths to attain and hold power.

In my view, considering each of these elements, the Supreme Court will uphold this constitutional restriction by disqualifying Donald Trump.  

Peter J. Wallison is an emeritus senior fellow at the American Enterprise Institute. He was White House Counsel and Treasury General Counsel in the Reagan Administration.