by Robert Romano
After sweeping the Iowa caucus and New Hampshire primary — the first Republican in a competitive presidential nomination race to do so since the GOP started using the Iowa caucus in 1976 — former President Donald Trump will run unopposed in the Nevada caucus on Feb. 8 and appears to be safely ahead in polls in the South Carolina primary on Feb. 24.
The Republican National Committee even briefly considered naming Trump the “presumptive” GOP nominee before the plan was scrapped.
But arguably the most important primary is the one directly ahead — the Supreme Court — the unelected third branch of the federal government, which will be hearing oral arguments on Feb. 8 in the Fourteenth Amendment, Section 3 case with Trump challenging the decisions by Colorado and Maine to bar him from appearing on either the state primary or general election ballots.
Under the Fourteenth Amendment’s Section 3, it states “No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.”
The Colorado Supreme Court’s Dec. 19 ruling stated, “A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
On Jan. 18, Trump filed his petitioner’s brief to the court, arguing that Section 3 of the Fourteenth Amendment does not apply to the office of the presidency — it mentions “an officer of the United States” rather than the President directly — but that even if the section does apply to the presidency, his speech on Jan. 6, 2021 on the National Mall and legal challenges to the results of the 2020 election cannot be considered insurrection because they are First Amendment protected speech and petitions to the government for redresses of grievances.
In his Jan. 6, 2021 speech, Trump urged supporters to “peacefully and patriotically make your voices heard” prior to the riot at the U.S. Capitol that day as Congress considered challenges to the 2020 presidential election. The riot actually impeded the legal challenges, which were not voted upon in the House until 11:08 p.m. on Jan. 6, 2021 and 3:08 a.m. on Jan. 7, 2021 for the objections to Arizona and Pennsylvania, respectively. Votes in the Senate similarly failed to discount the Electoral College votes from those states. And an objection to the electors from Georgia was withdrawn after the riot.
Trump’s lawyers warned in the brief that the moves by states to control who appears on the ballot would disenfranchise millions of Americans and result in chaos, stating they “threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots.”
Finally, Trump’s lawyers argued that Section 3 of the Fourteenth Amendment requires Congressional enforcement legislation under the amendment’s Section 5, which states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
These are definitely very good sounding arguments, and particularly, the question of Congress’ role will almost certainly need to be considered. In fact, Congress actually heard a case against Trump for incitement of insurrection when the House impeached him in Jan. 2021 — a case in which the Senate acquitted him.
However, even if the Supreme Court considers the impeachment trial as having settled the matter, surely the Supreme Court will want to also take up the Colorado Supreme Court’s contention that Section 3 of the Fourteenth Amendment is somehow self-executing, when it stated “Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing…”
Colorado once again makes that argument in its response brief filed Jan. 26 to the Supreme Court, stating, “This Court’s controlling precedent confirms the Fourteenth Amendment’s provisions ‘are self executing.’ … In City of Boerne, the Court characterized Congress’s Section 5 power to enforce the Fourteenth Amendment as purely ‘remedial’ rather than ‘substantive.’ … It made clear ‘[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary,’ whether Congress has legislated or not. … Similarly, the Fifteenth Amendment is self-executing despite also authorizing Congressional enforcement, id., as is Thirteenth Amendment’s ban on slavery, see Civil Rights Cases … (‘[The Thirteenth] amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation’). Nothing in its text or history suggests Section 3 is somehow different in this respect from all other provisions of the Reconstruction Amendments.”
Because the history of the Section 3 of the Fourteenth Amendment’s history suggests otherwise that there is an essential role played by Congress. Before the Fourteenth Amendment was even ratified in 1868, Congress had already supplied a procedure for disqualifying former Confederate officers and soldiers from running for public office in the First Military Reconstruction Act of 1867. The disqualification required military tribunals, speedy trials and convictions, and also ratification of the Fourteenth Amendment in order for states to be readmitted to the Union.
This was enforced in part by the Enforcement Act of 1870, which provided in Sections 14 and 15 for federal prosecutors to bring cases that would remove individuals from holding public office if they had participated in the Confederacy. It was not self-executing, it required convictions.
Section 14 stated, “That whenever any person shall persons hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the of the district attorney of the United States for the district in which such person shall hold office, as foresaid, to proceed against such person… [in] the circuit or district court of the against by United States in such district, and to prosecute the same to the removal of such person from office.” Here, Congress was explicitly holding onto its own power to disqualify its own members, and of states to do the same. Under no reading, however, would this provision have applied to the President, to be removed, since that is covered under impeachment, removal and disqualification as under the Constitution. In this case, officers of the United States, that is, federal employees, could be removed from office if they were later tried and convicted of participating in the Confederacy.
Section 15 provided that upon conviction, a person who had participated in the Confederacy and held public office and was removed, would be guilty of a misdemeanor, imprisoned for no more than a year and fined no more than $1,000.
When it came to removing the former Confederates’ disability of running for public office, that was once again Congress. Congress had already removed political disabilities for 4,616 former Confederates by March 1871. And then, with the Amnesty Act of 1872 to remove all political disabilities “except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses and officers in the judicial, military, and naval service of the United States, heads of Departments, and foreign ministers of the United States.”
And again, in 1896, it was Congress who voted to allow former Confederate officers to rejoin the U.S. armed forces. And in 1898, the Section 3 bar was removed completely by Congress. Every time, this was done by two-thirds votes required of Congress to remove the political disabilities under Section 3.
During Reconstruction, military districts who would try rebels in military captivity. Afterward, if a member of the Confederacy were in the federal civil or armed services, it was federal prosecutors who brought a charge and sought conviction and removal of those officers — all under legal processes established by Congress under Section 5 of the Fourteenth Amendment.
Colorado and Maine seem to want to say that none of that matters, that if a speech precedes a riot, then the Secretary of State of a state has the power to arbitrarily remove that candidate from the ballot without any trial or conviction of insurrection — almost certainly a violation of Section 1 of the Fourteenth Amendment which state “nor shall any state deprive any person of life, liberty, or property, without due process of law” — if in the opinion of the Secretary of State, it was a rebellion — even if the speech was protected by the First Amendment.
All of which makes the Supreme Court case the most important step forward for Trump not only in the Republican primary, but in the 2024 general election all told. What the court does will determine to fate of the race, and maybe even the republic. Trump’s lawyers are right. If the Supreme Court keeps Trump off the ballot, all hell is going to break loose.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
