SCOTUS Should Say Now if Trump Can Serve Again
So the issue doesn’t return to Congress after the election
Many predict, even hope, that the Supreme Court will nullify the Colorado ruling that bars Donald Trump from the ballot because of his role in the January 6 riot at the Capitol—and also the Maine decision that follows Colorado’s lead.
What’s overlooked is that it matters exactly how the Supreme Court restores Trump to the ballot, if that’s what happens. There are basically two ways the Court could do it—and if the Court picks the wrong route, it could invite significant unrest after the election is over.
The first route to a reversal would be for the Court to disagree with the Colorado decision on the merits. A 4-3 majority of Colorado’s highest court, as is well known by now, found Trump’s conduct to be covered by the constitutional provision that bars from returning to office all officers who violated their oath to “support the Constitution” by engaging in an insurrection “against the same.”
The Supreme Court could say that the Colorado majority was incorrect in this determination and that, for any of several reasons, Trump does not fall within the scope of the Constitution’s disqualification provision. Among the options for a merits-based reversal are: (1) the rampage of the Capitol, as horrific as it was, wasn’t an “insurrection” within the meaning of the Constitution; (2) Trump’s responsibility for the rampage, the most coup-like behavior any president has ever committed, doesn’t qualify as “engaging” in an insurrection even assuming the rioters themselves were insurrectionists; or (3) the presidency, for technical reasons, is not an “office” included within the disqualification provision.
But there is an entirely separate path the Supreme Court could take to reverse the Colorado ruling, which does not involve the Court disputing the Colorado conclusion on the merits. The Supreme Court could say that no court, including the Colorado court, has the power to reach the merits of whether or not Trump is disqualified under the relevant constitutional clause. There are various ways the Court could render this purely procedural determination. The foremost of these—which some have found persuasive—is to say that no court can hear a disqualification case unless and until Congress first acts to enforce the provision by establishing a procedure for this kind of hearing, which Congress hasn’t done (or more accurately did, but then repealed, and hasn’t reinstated).
One can understand why Supreme Court justices might be inclined to embrace this position—which among lawyers is often framed as saying that the Constitution’s disqualification provision is not “self-executing,” although that’s somewhat misleading because it would go further and ban state legislatures from enacting laws to enforce the disqualification without prior permission from Congress. The Supreme Court justices easily could find this position attractive because they wouldn’t need to say that what Trump did wasn’t disqualifying. Instead, they could just punt the issue to Congress, placing responsibility for dealing with it there.
But if that’s the route the Court takes in putting Trump back on the ballot, it tees up the risk of the issue remaining a subject of active agitation after the November election and potentially all the way to January 6, 2025. If Trump is nominated and wins the election, members of Congress could say that the Court left the merits of the disqualification issue undecided and, in particular, left it for Congress to address. Indeed, reacting to the Colorado and Maine rulings, one Republican member of Congress has already asserted that Congress will have the last word on counting electoral votes from any state that disqualifies Trump.
Congress will convene on January 6, 2025, to count the electoral votes from the 2024 election. When Congress does so, if Trump has won, Democrats in Congress may attempt to prohibit Trump from being inaugurated president again on the ground that he’s constitutionally disqualified for the reasons that the Colorado majority said. Unless the Court affirmatively declares that Trump is eligible to serve a second term despite his conduct in connection with the Capitol attack, congressional Democrats will consider themselves empowered to block Trump’s inauguration. They will cite (along with specific provisions of the newly revised electoral count law) the Twentieth Amendment, which makes the new vice president the acting president “if the President elect shall have failed to qualify.”
It seems doubtful that congressional Democrats would prevail in this gambit. For one thing, they would need to retake the House of Representatives. But they are likely to lose control of the Senate. If so, and depending on how far they fall short of a Senate majority, they would have to rely upon support from one or more of the three remaining Republican senators who voted to convict Trump in his second impeachment trial: Cassidy, Collins, and Murkowski. Although their conviction votes were tantamount to determining already that Trump is disqualified from being president again because of his culpability for the January 6 insurrection, it does not follow automatically that these senators would vote the same way again. In fact, Senator Collins has already stated, in urging Trump to be reinstated to the ballot, that voters should get to decide whether or not he’s reelected president.
Moreover, it’s not even clear that all Democrats in Congress would support disqualifying Trump after he’s won the election (assuming he does). In the wake of the Maine decision to remove Trump from the ballot there, Senator Angus King—an independent who caucuses with the Democrats—announced: “I believe the decision as to whether or not Mr. Trump should again be considered for the presidency should rest with the people as expressed in free and fair elections.” (He hedged a bit by prefacing: “absent a final determination of a violation of the 14th Amendment’s disqualification clause.” But that qualification only adds to the need for a clear ruling on the merits from the Supreme Court.) Likewise, Representative Jared Goldin from Maine, a Democrat, stated: “until [Trump] is actually found guilty of the crime of insurrection, he should be allowed on the ballot.”
There are compelling reasons why Democrats should decline to disqualify Trump after voters have reelected him. As I’ve argued previously, if Trump is to be disqualified, fairness to voters requires that it happen before they cast their ballots. Afterwards, it’s too late. One would hope that many congressional Democrats would agree with this position.
But there’s no guarantee of that. The desire among some Democrats to keep Trump from returning to power is so great, it is almost certain that there will be a concerted effort to try to stop it from happening even if that effort is unlikely to succeed. Just their attempt, starting in November after Trump’s victory is announced and extending all the way to January, could set the country ablaze.
As angry as Trump supporters would be if the Supreme Court lets the Colorado ruling stand (thus keeping Trump off the ballot), think how much angrier they will be, if after Trump has won the election, Democrats in Congress—and around the country—organize an effort to try to keep him from being inaugurated on January 20, 2025.
It’s worse to have something taken away from you than not to get it in the first place. To have Trump’s victory voided after the votes for him have been cast would be a deprivation far more severe than telling voters in advance that they have to vote for a different Republican candidate. The mere threat of this might be enough to roil the country.
Maybe that would cause Democrats to refrain from pursuing the matter at all.
Don’t count on it. Jamie Raskin, among others, has already made abundantly clear how much he thinks Trump is constitutionally disqualified because of January 6. Unless the Supreme Court has told him that he’s wrong about this on the merits, Raskin presumably will attempt to rally support for keeping Trump out of the White House again. (Raskin might even be tempted to try to block Trump from office even if the Court rules him eligible, especially if the Court’s ruling is divided, but it is hard to imagine him having much support for defying a definitive determination from the Court on the issue. There’s much greater risk of this type of effort gathering momentum if the Court has left the merits of the issue unsettled.)
To avoid anything like this transpiring, the Supreme Court should tell the nation’s voters now whether or not Trump, if elected, is constitutionally entitled to be president again. As much as the justices might prefer to deflect this key question procedurally, they shouldn’t.
If the Court puts Trump back on the ballot, they should do it in a way that makes clear to Congress that under the Court’s interpretation of the Constitution, Congress would lack the authority to negate Trump’s Electoral College victory afterwards. If the justices can’t bring themselves to write that kind of opinion, then they should they cogently explain why Trump—because he instigated the January 6 assault in an attempt to seize power unconstitutionally—forfeited the right to return to a position of public trust.
Hello Professor Foley!
Thank you for sharing your expertise in many forms of media and educating your audiences. I've been reading many of your articles since the start of the 2020 Election cycle and purchased two of your books this year for myself and then bought more copies to give as Christmas presents recently. You are truly a talented author, and I am very excited to hear that you are working on another book currently. Equally, I am looking forward to your work on this platform!
Please excuse me if this is not appropriate for this forum, but I would like to hear your opinion on a few arguments raised in the Colorado Supreme Court case, Anderson v Griswold, and also during the Secretary of Maine's hearing on Trump's eligibility under Section 3 of the 14th Amendment. I apologize if this is an inappropriate request and understand that you are a working on important matters and that your time may be better served on less frivolous tasks.
I am unaware if you have written about the "originalist" arguments pertaining to whether or not Section 3 of the 14th Amendment applies to the presidency and would very much like to hear your opinion. The majority opinion by the Colorado Supreme Court make a few of these originalist arguments between pages 76 - 79 within a section titled, 1. The President Is an Office Under the United States. Here, the Justices reference speeches by Representative McKee, a back-and-forth between Senators Reverdy Johnson and Lot Morrill, content from newspapers and journals during the Reconstruction era and a bill passed by Congress that all speak to the sentiment of the time being that Section 3 does pertain to the President. The majority continue to argue additional originalist arguments on pages 79 - 84 within the section, 2. The President is an Officer Under the United States. This section suggests a common understanding at the time was that the president is an Officer under the US, describes the opinions of Attorney General Stanbery and references statements by Senators by several Senators. Likewise, Professor Magliocca presented in the Secretary of Maine's hearing similar and different originalist arguments.
Do you find these originalist ideas compelling and valid, Professor Foley? Again, no problem whatsoever if you do not have the time to respond to my inquiry. I will still remain a Foley fan and loyal reader of your works.
I also wanted to share a perspective of mine about Section 3. It seems to me that when Trump's lawyers argue that Sec 3 is not applicable to the presidency because the president is not an "Officer of the United States" but an "Officer of the Constitution" that this would also imply that a state governor would be an "Officer of the Constitution and State Constitution," and therefore would also be exempt. Governors often take oaths that use similar language as the Presidential Oath to "preserve, protect and defend" the Constitution and the state's Constitution. Probably a weak argument on my behalf.
Thank you very much Professor Foley for all the work and time you devote to ensuring our democracy runs smoothly!!!
Sincerely,
Joe Wilson