• Show Notes

Dear Reader,

Nobody knows for sure how this is going to go. No practitioner, no law professor, no retired judge, no Twitter icon, no TV analyst or former prosecutor (ahem) can rightly make bold declarations about how the ongoing legal armageddon over the Fourteenth Amendment will ultimately come out. We can have our views on what’s likely – I’ve got mine, and we’ll get to them – and we can draw on adjacent examples, but we’ve never seen anything quite like the ongoing effort to disqualify Donald Trump from the 2024 presidential ballot. As a wise federal judge once said to me after a difficult trial setback: “A little humility never hurt anyone.” So let’s start by acknowledging that this is new to all of us. We can learn together as we go.  

Further complicating matters, we (collectively) have been all over the map (literally) on the issue. Nationwide, the healthy majority of Fourteenth Amendment challenges have failed. Some have been rejected by secretaries of state, others by state courts, still others by federal judges, for varied reasons. But now two states, Colorado and Maine, have broken the seal and determined (for the moment) that Trump engaged in insurrection and, therefore, cannot appear on their 2024 ballots. 

Late last week, the Supreme Court – likely spurred by the proliferation of state-by-state chaos – decided to weigh in. The Court’s order granting certiorari (that is, taking the case) is perfunctory. The Court gave us one paragraph, all about scheduling. While some certiorari orders delineate the precise legal questions to be argued, this one is silent on the matter. Essentially, it’s: We’re taking the case, but we’re not specifying on exactly what grounds.

Still, we can puzzle through and gain some clarity. In his petition for review, Trump makes somewhere between seven and ten arguments against his disqualification, depending how thinly we slice the pie. The Court might rule on all of them, or some, or none at all; it might find for Trump on some issues but against him on others; or it could import a rationale that Trump has not even raised. The permutations are dizzying, mathematically. Let’s try to narrow down the possibilities in Holmes-ian fashion (Sherlock or Oliver Wendell, take your pick).

First, let’s adopt an uncontroversial premise: the Supreme Court wants to put an end to this, now. The last thing the justices (or most Americans, I’d assume) want over the next few months is a piecemeal flow of other disputes arising in dozens of states that disqualify (or refuse to disqualify) Trump from the 2024 ballot. The Court has every incentive to use a silver bullet here. One shot and we’re done. 

Agreed? If so, then we have our answer about who will win. 

Let’s imagine the Court defies the widespread (but not universal) expectation that it will strike down the Colorado Supreme Court, upholding Trump’s disqualification there. The ruling would essentially amount to: Individual states do have the right to apply and administer the Fourteenth Amendment according to their own procedures, and Colorado did so within the bounds of Due Process. A decision along these lines would bar Trump from the Colorado ballot, and it would establish that other states can apply the Fourteenth Amendment to ban him, too, so long as they abide by reasonably fair processes. 

But here’s the problem. A pro-Colorado, anti-Trump outcome doesn’t settle anything beyond the borders of the Rocky Mountain State. If the Court does leave disqualification up to the states, then every state’s determination becomes fodder for litigation: Did this state abide by its own procedures and afford Trump Due Process? The Supreme Court would essentially have to consider (or refuse to consider) each state’s disqualification determination, one-by-one – and there are around three dozen such challenges making their way through various administrative agencies and courts. Do you see a world where the Supreme Court invites that outcome? I don’t. 

If the Court wants to issue one definitive ruling that will resolve all Fourteenth Amendment challenges nationwide, it has two pathways – and both of them result in Trump victories. 

First, the Supreme Court could rule that only Congress has the authority to set procedures for application of the Fourteenth Amendment and that, in the absence of such enabling legislation, the states are out of luck. (Keep in mind that, while Section 3 of the 14th Amendment contains the insurrection clause, Section 5 provides that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”) 

Second, the Court might rule that the Fourteenth Amendment does not apply to the presidency. On one hand, the Amendment’s text does delineate certain offices – Senators, Representatives, even presidential electors – but not the president (though it does apply to “any office, civil or military, under the United States”). On the other hand, it’s tough to believe the Framers wanted to keep insurrectionists out of all offices, except the most powerful one.   

If I had to guess – and we are all guessing, perhaps cut with some experience and intuition – I’d go with the former one-shot approach (though they could do both). The Court can base its ruling on textualist, plain language principles: when the Constitution says “Congress” decides, it means “Congress,” and not “Congress – but also the states, if they feel like it.” It’s legalistic, it’s above-the-fray, it’s clean, and it’s definitive. Plus, the Court would build itself a neat political heat-shield: Don’t like this result? Blame Congress, they’re the ones who haven’t done their jobs.

As for the “President is not an officer” argument, that one feels too much like a loophole, a stretch of common sense. How the hell could the president not be an officer of the United States? I have a hunch the Court will give that one a pass. Either way (or both), with one decision, the Court can reach a defensible legal result, and put an end to the ongoing political and electoral chaos. 

If that’s disappointing to you, take solace in this: whatever happens, we’ll know much more about the Constitutional insurrectionist ban when this is all over. The Fourteenth Amendment may not help the country be rid of Donld Trump now, but we could learn how to use it properly in the future. 

Stay Informed,


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