A SCOTUS Problem

Spectator

By Stephen Tuttle | Jan. 13, 2024

The Supreme Court of the United States (SCOTUS) has decided to take up the Colorado case in which Donald Trump has been booted off their primary ballot after allegedly having violated Section 3 of the 14th Amendment of the U.S. Constitution.

This has the potential to become very messy regardless of which side of the political spectrum you call home.

Section 3 of the 14th Amendment says, “No person shall be a Senator or Representative in Congress, or elector of President or 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.”

Adopted in 1868, the idea was to prevent folks who had been active members of the Confederacy from holding public office since no one was certain they could be trusted. And those combatants certainly qualified as people who met Oxford Languages' definition of insurrectionists as involved in an armed rebellion against the constituted authority of the U.S.

Trump defenders point out the constitutional language does not specifically include the president or vice president among those who would be disqualified from seeking high office. But the “... or hold any office, civil or military...” would surely include the president and VP and the “... as an officer of the United States...” probably would include the country’s CEO and commander-in-chief of the military. In fact, one could easily make the argument that the president is the officer of the United States.

His defenders might also argue the 91 felony charges in four states levied against Trump do not include insurrection or rebellion or related offenses. But his outlandish rhetoric surrounding the events of Jan. 6 could certainly be construed as participating in an attempted rebellion by providing aid to those storming the Capitol that day. Some might suggest his calls to Mike Pence, insisting Pence commit an act he clearly had no authority to undertake, not to mention the threats he made to the Georgia secretary of state who would not “find” votes that didn’t exist or face jail, plus calls to officials in both Michigan and Arizona, make Trump a direct participant in an attempted insurrection.

Claiming he “might” or “could” or “would,” if reelected, offer pardons to the now hundreds convicted of or having admitted to Jan. 6 crimes (700 have admitted wrongdoing, another 150 have been found guilty at trial, 80 are still being sought for alleged crimes of violence) seems likely to have offered the sort of “comfort” to the miscreants the constitution proscribes.

“Aid and comfort” are subjective terms not spelled out in the constitution or in statute, so SCOTUS will have to guess. While this is an unusually contentious and highly political issue of the sort SCOTUS usually likes to avoid lest they be accused of partisanship, they probably had to take action before this became a real problem.

Colorado and Maine have determined Trump does not belong on their primary ballot because of his actions on and after Jan. 6. A decision or appeal on the same issue is now pending in an additional 19 states, such efforts have already been dismissed in 13 states (including Michigan), and 17 other states have not yet joined the party.

SCOTUS has themselves a problem likely to worsen for which there is no precedent or statute, the constitution’s language is non-specific, and they have agreed to take a case that, in essence, will mean they are deciding who will or won’t appear on a state’s ballot as a presidential candidate.

The Court could make this a states’ rights case as they have been wont to do several times in the past including, at least in part, in their decision overturning Roe v. Wade. But that would allow Colorado, Maine, and others, presumably states that do not want Trump on the ballot for any number of reasons, to summarily end his candidacy.

Or, they could decide the political parties are entitled to place on their primary ballot whomever they want as long as those candidates are natural born U.S. citizens and at least 35 years old.

Or maybe, as one of Trump’s attorneys foolishly said in an interview, the justices he appointed will support him out of loyalty.

Or maybe they will surprise us all and, unwilling to be accused of naked partisanship, they will decide Colorado, Maine, and other states are within their legal rights to decide who has given aid and comfort to insurrectionists and who has not.

What seems to be beyond debate is whatever decision SCOTUS makes will be met with howls of protest from the side that feels most aggrieved. And on we go.