As much as I would love to see the threat of a second Trump presidency defused, I believe this is the correct outcome — one that safeguards the power of voters to elect the candidates of their choice and respects the proper division of responsibility between states and the federal government.
For all the lawyerly discussion about the import of “non-mutual collateral estoppel” and for all the careful text-parsing about the meaning of “officer of the United States” vs. “office under the United States,” the eventual ruling in Trump v. Anderson appears likely to be based on a more foundational idea: In our democratic system, voters across the country, not judges or bureaucrats in individual states, should be entrusted with the decision about whom to elect president.
And for all the deep and continuing ideological divisions on this conservative-dominated court, this dispute seems destined, thankfully, to produce a cross-ideological consensus, if not a unified methodological approach. Such an outcome would be one contrast to the party-line conclusions of the court’s previous big election ruling, the 5-4 decision in Bush v. Gore in 2000.
I fully understand those who argue that Section 3 of the 14th Amendment was designed for precisely this circumstance: a former official who swore an oath to support the Constitution and who then whipped up a mob bent on preventing Congress from certifying election results that went against him. Section 3 has been largely dormant since the post-Civil War period not because its sell-by date has passed but because, until Trump, no official in the modern era has so transgressed constitutional norms.
Indeed, it was striking, if not surprising, that the oral arguments touched only briefly on the fundamental question of whether Trump is an insurrectionist. It took nearly an hour into the oral argument for a justice, Ketanji Brown Jackson, to get to that issue: “What is your argument that it was not” an insurrection, she asked Trump lawyer Jonathan Mitchell.
“For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence,” Mitchell said.
“And so the point is a chaotic effort is not an insurrection?” Jackson replied, with no small note of incredulity.
But Trump’s behavior is not going to form the basis of the court’s ruling. The question here, as Chief Justice John G. Roberts Jr. and others elected officials pointedly noted, was instead whether the framers of the 14th Amendment intended in 1868 to empower states to disqualify national-level officials from office — not just state or local officials or even congressional delegations.
“The whole point of the 14th Amendment was to restrict state power, right?” Roberts asked Jason Murray, the lawyer for Colorado voters seeking to disqualify Trump from appearing on the primary ballot. “Now, on the other hand, it augmented federal power.” So, looking to Section 3 as a basis for giving states the power to oversee the presidential election, the chief justice added, “seems to be a position that’s at war with the whole thrust of the 14th Amendment, and very ahistorical.”
Justice Elena Kagan, for whom Murray clerked, echoed Roberts. “Why should a single state,” she asked, “have the ability to make this determination not only for their own citizens but for the rest of the nation?”
And that seems to be the rough direction in which the majority — perhaps a unanimous court — is heading. States get to determine ballot eligibility when the qualifications are clear — a president must be 35 years old and a natural-born citizen, for instance. But when it comes to national office and judgment calls such as what constitutes engaging in insurrection, that is beyond the scope of what state officials — at least absent clear authorization — are empowered to do.
The court could choose a number of paths to get there. Justice Brett M. Kavanaugh seemed persuaded by “Griffin’s Case,” an 1869 ruling by Chief Justice Salmon P. Chase, then riding circuit, which said Section 3 of the amendment required implementing legislation to be enforced.
“It’s by the chief justice of the United States a year after the 14th Amendment,” Kavanaugh said. “That seems to me to be highly probative of what the meaning or understanding of that language, otherwise elusive language, is.” (A complicating factor: Chase took the opposing view in ruling on whether Confederate president Jefferson Davis could be tried for treason, so, as Trump’s attorney acknowledged, “that argument could potentially boomerang on us.”)
The court could choose to kick the can down the road, taking up Mitchell’s suggestion that disqualifying Trump would be premature. After all, Section 3 bars insurrectionists only from “holding office,” not running for it, and contains a separate provision that allows Congress, by a two-thirds majority, to remove the disability. That route seems dicey; it offers the prospect for mischief and discord if Trump is elected. Better to settle things now — and let the people decide.
At bottom, Thursday’s arguments underscored: This court doesn’t want to be mired in mediating these ballot disputes and doesn’t think that would be healthy for the country.
Roberts warned of a world of tit-for-tat disqualification battles if Colorado’s effort to boot Trump succeeds. “In very quick order, I would expect … that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot, and others, for the Republican candidate, you’re off the ballot, and it will come down to just a handful of states that are going to decide the presidential election,” he said. “That’s a pretty daunting consequence.”
Roberts’s fears might be overblown, but the point remains. This was an argument about practical consequences as much as it was constitutional niceties.
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