Legal scholar: The Constitution is clear. Trump is disqualified from being president | Opinion

The Supreme Court’s role is to enforce the Constitution, and it should do so in Trump v. Anderson to disqualify Donald Trump from running for president. In a 4-3 decision, the Colorado Supreme Court ruled that Trump was disqualified from being on the ballot for president in the Republican primary because of Section Three of the Fourteenth Amendment. The United States Supreme Court will hear oral arguments on February 8 and should come to the same conclusion.

Section Three 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.”

Opinion

There is a surface appeal to the argument that it should be for the democratic process — not the Supreme Court — to decide who should be president. But there are constitutional provisions that limit 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. Section Three of the Fourteenth Amendment is another limitation, stating that it must be the role of the courts to enforce these constitutional provisions; otherwise, they are rendered meaningless.

The Constitution is inherently anti-democratic in that it limits what the democratic process can do. Every time a federal court enforces the Constitution to strike down a law or an executive action, that is anti-democratic in the sense of unelected judges overturning the product of the democratic process. But long ago, in 1803, the Supreme Court declared in Marbury v. Madison that “it is the province and duty of the judicial department to say what the law is.” That is as true for Section Three of the Fourteenth Amendment as for all other constitutional provisions.

The Supreme Court should focus entirely on the constitutional issues before it and decide as a matter of law whether Section Three applies to Trump. It should not here or ever consider whether people will applaud or decry its ruling.

There are two major legal issues before the court. First: Does Section Three apply to the president? Section Three imposes a disqualification for being a “senator or representative in Congress, or elector of president and vice president,” but it does not specifically mention the office of president. However, the section then says, or “hold any office, civil or military, under the United States.” Under the Constitution, there is no doubt that the presidency is an “office” of the United States.

Why are other positions listed in Section Three, but not that of the president? The Colorado Supreme Court explained: “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 issue was explicitly discussed and answered in Congress when it was considering proposing the Fourteenth Amendment. Sen. Reverdy Johnson expressed concern that Section Three “does not go far enough” because past rebels “may be elected president or vice president.” Sen. Lot Morrill responded to this objection, saying, “Let me call the senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” This answer satisfied Johnson, just as it should satisfy the Supreme Court today.

The other legal issue is whether Trump engaged in insurrection or rebellion. Nothing in Section Three requires that there be a criminal conviction for a court to conclude that Trump did this. (Many were disqualified after the Civil War even where there had not been convictions.)

The dictionary defines an insurrection as “a violent uprising against an authority or government.” It is impossible to deny that this occurred on January 6, nor can Trump’s role in this — or his effort to do everything he could to undermine the results of the 2020 presidential election — be disputed.

To be sure, elemental due process requires that Trump have notice and a hearing before Section Three be applied to keep him off the ballot. But that occurred in the Colorado trial court, which held a five-day hearing before concluding that Trump had, indeed, participated in the insurrection.

Lest this be dismissed as partisan, prominent conservatives such as Law Professors and Federalist Society members William Baude and Michael Paulsen and former Federal Court of Appeals Judge Michael Luttig have come to the same conclusion.

The stakes in Trump v. Anderson are obviously enormous. Upholding the Colorado Supreme Court decision would end Trump’s run for the presidency. The most important question is whether the Supreme Court will perform its paramount role of enforcing the United States Constitution.