Will the Supreme Court Kick Trump Off the Ballot?

The United States Supreme Court will hear arguments in the Trump vs. Colorado case on Thursday. The Heritage Foundation held a panel discussion on the topic today to analyze the arguments. Fred Lucas reported that Josh Blackman, a professor at South Texas College of Law in Houston, an expert on the panel concluded that Trump would have to lose “bigly” – lose everything. Lucas quoted Blackman as saying that the Supreme Court would have to “overcome major obstacles” to uphold the December 19 decision of the Colorado Supreme Court. 

“The court has to find, No 1, that Colorado can enforce Section 3 [of the 14^th Amendment to the U.S. Constitution]. No. 2, that the president is an ‘officer of the United States,’” Blackman said. “No. 3, there was an insurrection. No. 4, that Trump engaged in insurrection. No. 5, there is no First Amendment defense to whatever Trump did on Jan. 6. No. 6, the phrase ‘officer of the United States’ refers to the presidency.” …

“If Trump is correct on any one of those junctures, any one of those steps, then he is on the ballot,” Blackman said. “It would take an absolute and complete collapse of Trump’s legal team to lose everything. It’s possible. But he would have to lose every single human point.”

Lucas shared answers to “four big questions ahead of the oral arguments” in the Trump ballot case on Thursday.

1. To Whom Does Section 3 Apply?

The language of Section 3 of the 14^th Amendment reads:

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 ember of Congress, or as an officer of the United States, or as  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.

Blackman is the co-author of a friend of the court brief filed at the U.S. Supreme Court. It contends that “civil officer,” referred to in Section 3, applies only to an appointed official or to someone who previously took an oath – not to the president or vice president. To back up that point, he referenced the Constitution’s appointments clause, commissions clause, impeachment clause, and oaths clause.

Further, Blackman noted in speaking of the Civil War-era provision, even Confederate President Jefferson Davis, as well as numerous Confederate politicians and military officials, previously had taken an oath to the U.S. Constitution in appointed or elected positions.

Trump is unique in history as someone whose only oath to the Constitution came as he was sworn in as president on Jan. 20, 2017.

“This is the ultimate off-ramp for the Supreme Court,” Blackman told the Heritage audience….

2. What’s Supreme Court Precedent?

Indiana Attorney General Todd Rokita, a Republican who also co-authored a brief for the high court, argued that neither the courts nor state officials can decide how to apply Section 3 of the 14^th Amendment….

 

3.Is Section 3 Still Relevant?

If the section of the 14^th Amendment does cover Trump, it’s not clear that it is still relevant, since Congress twice voted to remove the barrier to office.

Section 3 is unique in specifying that Congress “may by a vote of two-thirds of each House, remove such disability” for holding office, noted Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation.

Congress voted by majorities of two-thirds to do so in both 1872 and 1898.

“It specifically gave Congress the power to void Section 3 and basically remove it from the amendment. There is nothing like that anywhere else in the Constitution,” von Spakovsky said. “It makes sense that they put this in, because this section was put into the 14^th Amendment by Republicans who controlled Congress, because they were angry that all these Confederate military officers and government officials were getting reelected to Congress.” Acknowledging that the Trump ballot case provokes political divisions, von Spakovsky noted: “The most important thing for anyone in this situation to do is to divorce themselves from whether they like or don’t like Donald Trump.”

4. What Happens Jan. 6, 2025, If Supreme Court Punts?

There are grounds for the Supreme Court, led by Chief Justice John Roberts, to punt on the issue of Trump’s eligibility for the Colorado ballot, Blackman said….

My fear is that if the court, a majority, takes this off-ramp and says Congress can do it, then you are going to let Congress do it. The problem is, this lingers on to Inauguration Day.