The Supreme Court seems likely to let Trump walk. It will have to ignore the Constitution

(Dana Verkouteren / Associated Press)

The Supreme Court seems likely to let Trump walk. It will have to ignore the Constitution

Opinion piece, Elections 2024

Erwin Chemerinsky

February 8, 2024

Two seemingly contradictory impressions emerged from nearly three hours of oral arguments Thursday before the Supreme Court: The arguments for Donald Trump’s fitness to run for president again were quite weak, but the Supreme Court is likely to rule in his favor.

Based on the justices’ questions, it’s hard to imagine that five of them would agree with Colorado’s decision to ban Trump from running for office as an insurrectionist under the 14th Amendment.

The question before the court is whether Trump is disqualified from running for president under Section 3 of the amendment, which provides that no officeholder engaged in insurrection or rebellion against the country shall be a senator or representative in Congress , or elector of the president and vice president. President, or hold any office, civil or military, under the United States.

The oral arguments focused mainly on three questions. First, does Section 3 require that a statute passed by Congress be implemented? Several justices indicated support for the view that the provision does not apply in isolation and cannot be enforced without a federal law. For example, Justice Brett M. Kavanaugh said that the original public meaning was that a statute is necessary to apply

the part.

This argument is seriously flawed. For starters, the provision doesn’t need a law to enforce it, any more than the other constitutional presidential qualifications do, including being at least 35 years old, a natural-born citizen, and having served less than two terms.

Furthermore, the amendment clearly defines Congress’s role here: the last sentence gives the legislature the power to exempt an insurrectionist from the provision. But the amendment does not require congressional action to enforce the section.

Importantly, the Supreme Court declared in 1883 that the 14th Amendment is undoubtedly self-executing without any additional legislation. The main authority to the contrary, relied on by Trump lawyer Jonathan Mitchell and relied on by Kavanaugh, is not a Supreme Court ruling but an 1869 opinion by Chief Justice Salmon Chase for a lower appeals court. As Justice Sonia Sotomayor noted, Chase later came to the opposite conclusion, ruling that no statute was required for disqualification and that Jefferson Davis, the President of the Confederacy, was clearly disqualified from serving as President of the United States.

A second question that emerged prominently in the oral arguments is whether Section 3 applies to the President of the United States or only to other federal offices. Despite being ideological opposites, Justices Neil M. Gorsuch and Ketanji Brown Jackson both focused on the section list of various offices without mentioning the president.

The problem with this argument is that Section 3 also talks about any office, civilian or military. The Constitution repeatedly refers to the president as an officer. As the Colorado Supreme Court has explained, senators, representatives, and electors are listed as members of elected bodies that are


considered officials under the constitution. But the President is an officer of the United States covered by the term “any office.”

The courts’ conservatives pride themselves on adhering to the original meaning of the Constitution, and those who drafted and ratified the 14th Amendment undoubtedly saw Section 3 as applied to the president. This was explicitly stated on the floor of the Senate.

Gorsuch also noted during the argument that Section 3 only prohibits insurrectionists from becoming president, not running for office. But that’s an absurd distinction that could result in Trump not being disqualified until after he’s elected, a nightmare scenario.

The third question that takes up much of the discussion is whether Trump actually participated in an insurrection. Judge Samuel A. Alito Jr. questioned the evidence for that, while Kavanaugh noted that the former president has not been convicted of insurrection. But a Colorado court held a five-day hearing on that issue that could have tested Trump, after which the judge concluded that he had indeed participated in an insurrection. And nothing in Section 3 or its history requires a criminal conviction.

Another pair from opposite ends of the courts’ ideological spectrum, Justices Elena Kagan and Amy Coney Barrett, questioned whether one state court should be able to make such a decision. But every case must start in one state. Ultimately, what matters is not one state deciding so much, but rather the United States Supreme Court looking at the facts and the law as courts always do and deciding whether Section 3 disqualifies Trump.

This case offers the court an opportunity to show that it follows the law and the facts, and not just the political preferences of the judges. I understand from the oral argument that we will have reason to be disappointed again on this point.

I hope I’m wrong. If the court ignores the plain language and meaning of the 14th Amendment, it will be a loss to the Constitution and the country.

Erwin Chemerinsky is a writer for Opinion and dean of the UC Berkeley School of Law. His latest book is

Worse than nothing

: The dangerous fallacy of originalism.


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