As an attorney in the Trump White House, I remember pushback from allies as we considered declaring an emergency on the southern border. Conservatives tend to worry about the abuse of federal power, which caused generally supportive voices to raise concern that action based on an emergency declaration would set dangerous precedent.
“If you declare a border emergency, it will open the door to a climate emergency, an equity emergency, and so on,” they warned.
We took this warning seriously. Fortunately, federal law provides numerous safeguards, detailing what (limited) executive action is appropriate in case of a declared “emergency.” At the border, the emergency declaration merely enabled additional funding for border wall construction.
States do not generally have the same guardrails, which citizens in some states learned when COVID-19 struck. Michigan Gov. Gretchen Whitmer, for example, extended a pandemic emergency to prohibit Michiganders’ access to medical procedures, close schools and regulate almost every facet of life.
Citizens’ rights and freedoms suffered, with lasting impact today.
There’s a critical lesson for the Supreme Court as it considers whether former President Donald Trump can be removed from the ballot under the extraordinary authority of Section 3 of the 14th Amendment: Break-in-case-of-emergency power, particularly without legislative authorization and limits, threatens our rights.
The 14th Amendment prevents certain people from holding office after they “engaged in insurrection or rebellion” against the United States.
So what constitutes an insurrection or rebellion? A full-scale Civil War, certainly. But Jan. 6, 2021? Let’s first consider what the Constitution says and then consider the consequences.
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As 27 states point out in their brief challenging Colorado's removal of the former president from the 2024 ballot, the Constitution treats an “insurrection” extremely seriously, as it appears alongside terms like “invasion” and “rebellion.” For example, the Constitution empowers Congress to use the militia to “suppress Insurrections and repel Invasions.”
Early laws also treat insurrection as uniquely dangerous. The 1792 and 1795 Militia Acts say the president can use the militia to repel a foreign “invasion” or an “insurrection in any state,” but he does not have this power to stop states or individuals from doing illegal things.
The states' brief also explains that throughout the 19th century, “rebellion” and “insurrection” were basically synonymous. Insurrections required “a considerable military force” to be put down.
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In sharp contrast, the Colorado Supreme Court wouldn’t define an “insurrection,” but found one on Jan. 6, 2021, because it involved “a concerted and public use of force” meant to hinder “a peaceful transfer of power.”
This new “definition” is dangerous, because emergency power, once set free, comes for all of us.
Let’s take the Insurrection Act. This law empowers the armed forces where the president deems it necessary to suppress, among other things, an “insurrection.”
Sen. Tom Cotton, R-Ark., wrote a New York Times op-ed calling for this law’s application to George Floyd protesters, which the left regarded as so dangerous that the Times published a note of apology and, according to then-opinion page editor James Bennet, forced him to resign.
But once the insurrection standard is lowered, it’s lowered.
Take also the Suspension Clause. The Constitution protects prisoners’ right to challenge the legality of their detention, by guaranteeing that this right “shall not be suspended” unless the public safety requires it during a “Rebellion or Invasion.” (That is, during “rebellions,” the government can detain first and ask questions second.)
Watering down “insurrection” almost certainly waters down “rebellion,” as the two travel as a family. Our historical respect for these two terms, as the most severe terms for political unrest short of outright war, have protected citizens’ right to be free from unjust confinement. Once we lose that respect, we lose that protection.
Perhaps most obviously, Section 3 itself will become a weapon against our rights. Whiny partisan rhetoric has already opened the door to viewing political opponents as thieves.
As congressional members explained in their brief, Stacey Abrams said she “won” her election for Georgia governor in 2018. Hillary Clinton said the 2016 election was stolen from her. Many argue that “voting machines” fabricated decisive votes for President George W. Bush in 2004. These grievances incentivize partisan officials to interfere with our options, in the name of stopping thieves.
Emergency power, designed to respond quickly to catastrophic threats, is a one-way road. In considering whether the profound power to remove insurrectionists should be triggered here, the Supreme Court must consider what’s at stake. Whether Trump is off the ballot matters. But the more profound question is whether the actions of an unruly mob are properly considered an “insurrection,” which has since the beginning of our republic connoted severe and violent political opposition to government.
Expanding the “insurrection” definition, even just a little, threatens to unleash unfathomable power across our government.
May Mailman is the director of Independent Women’s Law Center.
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