Is Donald Trump disqualified from being president?

On Thurs., Feb. 8, the Supreme Court will hear oral arguments in potentially one of the most momentous cases in American history, Trump v. Anderson, which poses the issue of whether Donald Trump is disqualified from being president by Section 3 of the Fourteenth Amendment. In December, the Colorado Supreme Court, in a 4-3 decision, ruled that Trump was ineligible to be listed on the presidential primary ballot in that state. The issue has arisen in a number of other states and the Supreme Court quickly granted review and hopefully will resolve the issue for the country.

It is tempting to be dismissive and speculate that the conservative Roberts Court, with three justices appointed by Trump, would never bar him from being on the ballot. Yet a close examination of the legal issues makes it much harder to predict what the Court will, or should, do. In fact, two conservative law professors, both Federalist Society members, William Baude and Michael Paulsen wrote a lengthy article and concluded that “[i]f the public record is accurate, the case is not even close”: Trump engaged in insurrection and is ineligible for the presidency.

Section 3 of the Fourteenth Amendment provides: “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 … 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 a vote of two-thirds of each House, remove such disability.”

What are the legal issues before the Supreme Court? First, should the Court adjudicate cases under Section 3 of the Fourteenth Amendment or deem them to be a “political question?” There is a principle of federal court jurisdiction, “the political question doctrine,” which says that some matters will not be adjudicated in federal court, but are left to the other branches of government to resolve. The Court has invoked this when it feels there are no judicial standards or when there is a need for deference to the choices of other elected officials. But these considerations do not seem to apply here. The Court is asked to do its usual task, interpret and apply the language of a constitutional provision.

But there is another more subtle reason why dismissing the case as a political question makes no sense. The political question doctrine provides that the federal courts may not adjudicate a matter; it does not bar state courts from doing so. For example, the Court held that challenges to partisan gerrymandering are non-justiciable political questions in federal court, but it has been explicit that state courts can hear such a matter. If the Court were to dismiss Trump v. Anderson on this basis, it would mean that the issue would be left to each state court. That would be chaotic, as different states will come to varying conclusions. It is far superior to have the Court decide the question for the country.

Second, does Section 3 of the Fourteenth Amendment require congressional legislation in order to be enforced? Some have suggested this, but nothing in the provision indicates this. There are other constitutional limits on who can be president. Article II of the Constitution says that the president must be 35 years old, a natural born citizen, and 14 years a resident of the United States. If someone did not meet these requirements, it would be the role of the courts to disqualify the individual from being elected. Section 3 of the Fourteenth Amendment is no different in limiting who the people can elect to office.

In fact, in the Civil Rights Cases, in 1883, the Supreme Court said that the Fourteenth Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” Section 3 allows Congress to remove the disability, but does not require congressional action to enforce it.

Third, does Section 3 apply to the President? Section 3 lists many positions where there is a disqualification, but it does not specifically mention the president. The trial court in Colorado ruled in favor of Trump on this ground. But the Colorado Supreme Court reversed this conclusion and said: “It seems most likely that the Presidency is not specifically included because it is so evidently an ‘office.’ In fact, no specific office is listed in Section Three; instead, the Section refers to ‘any office, civil or military.’ True, senators, representatives, and presidential electors are listed, but none of these positions is considered an ‘office’ in the Constitution. Instead, senators and representatives are referred to as “members” of their respective bodies.”

In fact, this was explicitly discussed in Congress when it was considering proposing the Fourteenth Amendment. Senator Reverdy Johnson expressed concern that Section Three did not include the office of the Presidency. He stated, “[T]his amendment does not go far enough” because past rebels “may be elected President or Vice President of the United States.” Senator Lot Morrill fielded this objection. He replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” This answer satisfied Senator Johnson, as it should satisfy the Supreme Court today. As the Colorado Supreme Court observed, “Reconstruction-Era citizens – supporters and opponents of Section Three alike – understood that Section Three disqualified oath-breaking insurrectionists from holding the office of the President.”

Fourth, did Donald Trump engage in “insurrection or rebellion”? As Baude and Paulsen explain, there is nothing in the Fourteenth Amendment that requires a criminal conviction for the disqualification under Section 3 of the Fourteenth Amendment to apply. Many were disqualified after the Civil War even though there had not been a conviction.

To be sure, elemental due process requires that Trump have notice and a hearing before Section 3 be applied to keep him off the ballot. But that occurred in the Colorado trial court, which then concluded that Trump indeed had participated in the insurrection on Jan. 6. This was also the conclusion of the House of Representatives in January 2021, when it impeached Trump for his role in the Jan. 6 assault on the Capitol. The Colorado Supreme Court carefully reviewed the evidence and concluded that Trump’s actions to undermine the presidential election met the requirements of Section 3.

It certainly would be unprecedented for the Supreme Court to disqualify a leading candidate for the president of the United States. But the actions of Donald Trump were unprecedented.

It obviously will be tempting for the Court to want to leave it to the voters as to whether Trump should be president. But the Constitution exists to limit what the government can do. Unless the Court is going to nullify Section 3, and the other limits on who can be president, it must interpret and enforce this constitutional provision. As the Court said long ago in Marbury v. Madison, it “is the province and duty of the judicial department to say what the law is.”