Kicking Trump off the ballot won’t be easy. Here’s why

The argument that the 14th Amendment to the Constitution bars Donald Trump from the ballot has rapidly gone from obscurity to the top of the political agenda.

In August, when I wrote about why the 14th Amendment needed to be taken seriously and how it had the potential to upend the 2024 presidential campaign, a lot of people doubted the issue would get traction.

Now, it’s about to land at the U.S. Supreme Court. Within the next couple of weeks, the justices almost certainly will announce that they’ll review Tuesday’s Colorado Supreme Court ruling barring Trump from the state’s primary ballot.

But getting to the Supreme Court may prove to be the easy part. To win the case, Trump’s opponents have to surmount some big hurdles. Perhaps the toughest stems from Congress’ failure to take action in response to the Jan. 6, 2021, attack on the Capitol.

The 4-3 ruling by Colorado’s highest court held that Trump’s role in the Jan. 6 attack amounted to “engag[ing] in an insurrection.” Under the 14th Amendment, that means Trump is barred from holding any federal office, including the presidency, the Colorado court ruled.

The 14th Amendment was added to the Constitution after the Civil War. Section 3 of the amendment, written to keep former leaders of the Confederacy out of the government, says this:

“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, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.”

The gist is clear: A person who has taken an oath as an “officer of the United States” and then has “engaged in insurrection or rebellion” cannot “hold any office, civil or military, under the United States” unless two-thirds of Congress votes to allow it.

The details, however, are thorny. Among the unresolved questions:

• Who is an “officer of the United States”? Is the presidency covered?
• What does the text mean by “insurrection or rebellion”? Does the Jan. 6 attack on the Capitol qualify?
• Who gets to rule on whether someone has engaged in an insurrection? Can that be decided without a trial?

The Colorado court ruling affects only Colorado. Logically, however, if the Constitution bans Trump from office, the ban is effective in all states. Either he’s eligible or he isn’t. That’s why the U.S. Supreme Court almost certainly will take up the case — it’s the only body that can ensure uniformity of the law across the country.

Of the nine justices on the high court, six are Republicans. But partisanship may not save Trump; the justices have already shown their willingness to rebuff him, rejecting appeals by his allies after he lost the 2020 presidential election, for example.

Trump’s lawyers argue that the amendment doesn’t apply to the presidency. The text specifically mentions senators and representatives, they note, but doesn’t mention the president.

The Colorado Supreme Court rejected that argument. “Any office, civil or military” clearly includes the nation’s highest office, the judges said. Any other reading would be inconsistent with the purpose of the amendment — to prevent rebels from regaining positions of power.

“President Trump asks us to hold that Section Three disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” they wrote, emphasizing the alleged exception for the presidency. That, they said, would be “inconsistent with the plain language and history of Section Three.”

Most legal scholars who have written about the 14th Amendment take that side.

The other questions have generated more disagreement.

Was Jan. 6 an insurrection? The riot was a violent attack on the seat of government, and it temporarily disrupted congressional business. But it was a far cry from the Civil War, which took the lives of 2% of the entire U.S. population — the equivalent of 6 million people today. Just what did the authors of the 14th Amendment have in mind when they wrote “insurrection or rebellion”?

“These are demanding terms, connoting only the most serious of uprisings against the government, such as the Whiskey Rebellion and the Civil War,” wrote professor Michael McConnell of Stanford Law School, one of the scholars who has argued for a narrow reading of what’s covered. “The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history,” he said.

Other scholars take the opposite view.

If Jan. 6 was an insurrection, did Trump engage in it?

That’s not purely a legal question; it’s a factual one — the sort normally resolved by a trial. The 14th Amendment doesn’t say, however, that it applies to people who are convicted of insurrection; instead, it bars those who have engaged in one. That suggests something less than a full-dress criminal trial may suffice; but clearly some process has to exist to decide whether any particular individual is covered.

In Colorado, state District Judge Sarah B. Wallace held a five-day hearing, starting Oct. 30, in which she took testimony about Jan. 6. In mid-November, she ruled that Trump had engaged in the insurrection.

But was that hearing fair? Trump’s lawyers say no. So does one of the three dissenting Colorado Supreme Court justices, Carlos Samour Jr.

The hearing was “stripped ... of many basic protections that normally accompany a civil trial, never mind a criminal trial,” he wrote in his dissent. “I have been involved in the justice system for thirty-three years now, and what took place here doesn’t resemble anything I’ve seen in a courtroom.”

Even if the U.S. Supreme Court feels that the process was fair, it’s highly unlikely the justices would allow a single state court judge to make a factual finding for the entire country. But allowing each of the 50 states to make its own decision seems equally undesirable, and likely to invite a cacophony of conflicting rulings.

That’s the central problem with the whole case, Samour wrote, warning about “the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section 3 disqualification cases on an ad hoc basis.”

The Supreme Court makes rulings on the law, not on findings of fact, so it’s not in a position to create a fair process for deciding whether Trump — or anyone else — is an insurrectionist.

Congress is the one body that could solve the problem. It could do what a previous Congress did after the Civil War: create, by law, a procedure for deciding who has engaged in conduct covered by the 14th Amendment’s ban.

That, however, is not going to happen. Ever since Jan. 6, Trump’s Republican allies have made sure that lawmakers would take no action on it beyond holding hearings. Their support spared Trump from conviction after he was impeached over the Capitol attack.

Now, there’s a good chance the Supreme Court will rule that the 14th Amendment can’t be enforced against Trump because no fair procedure exists to establish the relevant facts.

If so, the congressional blockade against accountability will have scored a crucial victory.