The U.S. Supreme Court will hear oral arguments this week on whether states can keep Donald Trump from appearing on primary election ballots for president based on the U.S. Constitution’s insurrection clause. More seriously, it could decide that Trump is ineligible to be president again even if he wins the November election.
We should hope for two outcomes: First, that the court does not use technicalities and procedural issues to evade a clear decision; and second, that it allows common sense and the fate of democracy to loom large in its decision.
The case before the court is an appeal of a December ruling by the Colorado Supreme Court. It found, "President Trump is disqualified from holding the office of President (and) because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot."
The basis of its decision is Section 3 of the Constitution's 14th Amendment, the so-called Disqualification Clause. It says public officials cannot hold office in government if they take oaths of loyalty to the Constitution and later participate in an insurrection. The Colorado Court affirmed that the riots on January 6, 2021, were an insurrection, and that Trump acted "overtly and voluntarily with the intent of aiding or furthering" it.
Since Congress added the Disqualification Clause to the Constitution in the 1800s, courts have rarely addressed it. This leaves a variety of issues for the current justices to consider, as well as opportunities to avoid a politically volatile ruling on technical or procedural grounds. Instead, they should rule definitively to clarify the clause because Trump has created a political precedent in which we may see future attempts to overthrow the Constitution.
What are some of the key questions before the court?
1. Does the clause apply to presidents? It doesn't mention them specifically. This question came up when Congress debated the language in 1866. Maryland Sen. Reverdy Johnson asked why it didn't mention the offices of president and vice president. Sen. Lot Morrill of Maine explained both offices were covered by the provision that "no person shall…hold any office under the United States" if they took an oath to support the Constitution, then violated it by participating in an insurrection. This exchange provides an insight into congressional intent.
2. Was the riot on January 6, 2021, an insurrection? Three contemporary courts have ruled it was: district courts in New Mexico and Colorado and the Colorado Supreme Court. The House January 6th Committee report refers to that day's events as an insurrection 78 times. Several other congressional documents do the same.
3. Did Trump participate? The Disqualification Clause applies not only to direct participation in insurrection but also to giving "aid or comfort" to insurrectionists. The previously mentioned courts ruled Trump did so by inciting violence on January 6, and the House impeached Trump for "incitement of insurrection."
4. Shouldn't it be up to voters whether Trump can be president again? The 14th Amendment states a qualification to serve as president, like the Constitution's other requirements that a president must be a natural-born citizen of the U.S. and at least 35 years old. The Constitution's qualifications are not subject to voter discretion.
5. Has Trump been denied due process? No. The Colorado District Court held a five-day trial in which the judge heard multiple motions by Trump's attorneys and testimony from witnesses on Trump's behalf.
6. What about Trump's argument that he never swore to "support" the Constitution? Trump argues that although the 14th Amendment uses the word "support," the presidential oath uses the words "preserve, protect, and defend the Constitution." Preserving, protecting and defending the Constitution are synonymous with supporting it.
The implications of this case go deeper than Trump's eligibility to hold office. The U.S. Supreme Court will decide whether a solemn oath means anything in the United States today. The Constitution thinks it should. It not only requires each president-elect to swear fidelity to the Constitution, it requires the same by members of Congress, state legislators and "all executive and judicial officers both of the United States and several States."
Trump swore allegiance to the Constitution "under God" with his hand on the Bible. Yet he has signaled his willingness to defy it if he becomes president again. For example, he has said his Big Lie about the 2020 election "allows for the termination of all rules, regulations, and articles, even those found in the Constitution," and he has threatened to unilaterally end constitutionally guaranteed birthright citizenship.
In November, news outlets reported Trump and his allies were "mapping out specific plans for using the federal government to punish critics and opponents" and to deploy the U.S. military to squash civil demonstrations. Critics called these plans "dangerous and unconstitutional."
Trump has been called "the most anti-democratic president in American history," based on his first-term record. He has "done more to undermine American democracy than any chief executive in the modern era," according to analysis of representative democracies worldwide. They have rated America's democracy as flawed since 2016, when Trump was elected president.
Experts at the Brookings Institution explain that democracies usually break down gradually into authoritarian rule. The process is "dangerously deceptive." People still vote, but legislatures and courts rule that efforts to subvert democracy are legal.
That's exactly what's happening in the United States today.
State legislatures have passed 100 laws to suppress voting since 2013, when the Supreme Court gutted the Voting Rights Act. Trump continues to undermine public confidence in elections (Over a third of adults still believe Joe Biden lost in 2020.) And Trump's control of Republicans in Congress has prevented the legislative branch from its duty to "check and balance" presidential abuses of power (Republicans twice prevented Trump's impeachment for high crimes, and 126 current Republicans in Congress voted against certifying Biden's victory in 2021).
Now, as a result of Trump's four criminal indictments, the Supreme Court's conservative majority faces several tests of whether its loyalty lies with him or our constitutional democracy.
It is not a given that the justices will rule in his favor; the conservative majority has defied Trump several times in recent years. Typical of their client, Trump's attorneys have warned the justices that decisions by other states to exclude Trump from their ballots would "unleash chaos and bedlam." Republicans in Congress told the court an "unfortunate parade of horribles" would ensue if they rule against Trump this time.
It's unclear whether they are predicting political or civil trouble. But Trump, who talks about how he'd use the Insurrection Act to put down rebellion, is fully aware of the current president's options if "chaos and bedlam" rise to the level of another insurrection.
William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to Democracy in a Hotter Time, named by the journal Nature as one of 2023’s five best science books. He is executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.
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