Democrats, in Their Push To Disqualify Trump From Ballot Due to ‘Insurrection,’ Appear Destined for Supreme Court

As more challenges to the constitutionality of a second Trump term emerge, his fate could rest not only with voters but with unelected jurists.

AP/Charlie Riedel
President Trump during a rally July 7, 2023, at Council Bluffs, Iowa. AP/Charlie Riedel

Senator Kaine’s claim that there is a “powerful argument to be made” to disqualify President Trump from the 2024 presidential ballot brings into focus the possibility that Mr. Trump’s fate could be decided by not only America’s voters, but also by the Supreme Court.

The probability that the constitutionality of Mr. Trump’s return to the White House could reach the Nine is increasing along with the currency of using Section Three of the 14th Amendment, which bars officeholders who engaged in “insurrection and rebellion” or “aid and abet” America’s enemies from holding office again.

Some legal sages are now coming around to the position that Section Three, drafted after the Civil War, is a force, not a fossil, and should be used against Mr. Trump. A law review article to that effect, by William Baude and Michael Paulsen, argues that not only is Section Three applicable, it is also “self-executing,” meaning that it can be enforced by anyone, from President Biden to a state election worker.    

Lawmakers have joined the effort. Democrats in the last Congress introduced a measure to disqualify Mr. Trump, though that measure has now been put in amber given that Republicans control the House of Representatives. One liberal group, Free Speech for People, has launched a nationwide effort to persuade states’ attorneys general to block Mr. Trump from the ballot. At New Hampshire, one of the first primary states, Republican officials appear to be weighing the question.  

One attorney in Florida, Lawrence Caplan, filed a lawsuit in federal court requesting that Mr. Trump be ruled ineligible. It was dismissed, though, for lack of standing. Standing, a constitutional requirement that a party’s concrete interests be at stake in a verdict, is one question on which the high court’s opinion could be sought.

Mr. Caplan argued that he clears the standing bar because he has “actively participated in the last 12 Presidential elections dating back to 1976 when he cast his first vote at the age of 18.” Courts, including this one in Florida, have generally been skeptical of this species of generalized standing. Mr. Caplan acknowledges that he “always thought that standing would be the preeminent issue.” 

Before his case was rebuffed, Mr. Caplan told the Hill newspaper in respect of Mr. Trump that “this is a scary, scary guy, and if he’s president, I think we’re all on the way to fascism. There’s no law that says we have to remain a democracy forever.” In the Atlantic, a former judge, Michael Luttig, and a law professor, Laurence Tribe, argue that Mr. Trump’s activities “place him squarely within the ambit of the disqualification clause.”

Courts could find a stronger case for standing in a suit brought by a longshot challenger to Mr. Trump, John Anthony Castro, who is running against the former president and could try to claim that he is injured by Mr. Trump’s presence on the ballot. Yesterday on X, formerly Twitter, he wrote, “Happy Labor Day! About to unleash legal hell on @realDonaldTrump.” Accompanying that promise was an image of a cigar, a Harvard coaster, and eight civil cover sheets indicating legal action.

Even if a judge agrees that Section Three is self-executing and does not require lawmaking from Congress, the matter appears ticketed to end up in courtrooms, on review. For one thing, a court has never found that January 6 was an insurrection, nor has anyone — not one person — been charged with the crime of insurrection. 

The lone possible exception is Mr. Trump himself, who was, in his second impeachment, charged with “incitement to insurrection.” He was discovered by the Senate to be “not guilty” and was acquitted. Only one official in America, a county sheriff in New Mexico, has been disqualified from office on the basis of the 14th Amendment. 

In an editorial, the Wall Street Journal acknowledges that a scenario where a disqualification clause reaches the high court is “probably right but hardly reassuring,” and thus far the justices have not hesitated to rule against Mr. Trump.  In Trump v. Mazars USA, LLP, the justices held that congressional subpoenas could be enforced against him, and in Trump v. Vance, they found that he was not “immune from state criminal subpoenas seeking his private papers.”

The next time Mr. Trump appears on the high court docket, the matter could center on not his private prerogatives, but on his qualification to hold public office. That question could reach the justices, though, once voters have already handed him the Republican nomination or even, possibly, the presidency.

The New York Sun

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