Kick Trump Off the Ballot? Even Liberal Justices Are Skeptical Podcast Summary with Michael Barbaro, Jonathan Mitchell, Ketanji Brown Jackson, Adam Liptak, John Roberts, Jason Murray, Neil Gorsuch, Elena Kagan, Sonia Sotomayor

Kick Trump Off the Ballot? Even Liberal Justices Are Skeptical

1-Page Summary

The arguments Trump's lawyers make for why Section 3 of the 14th Amendment does not apply to disqualify Trump

Trump's legal team, led by Jonathan Mitchell, insists that Section 3 of the 14th Amendment is not applicable to Trump since it designates an "officer of the United States" as an appointed official, not an elected one such as the President. They contend that the historical context of this amendment focused on barring Confederate officials from appointed offices, not elected national figures. Moreover, Mitchell argues that Section 3 does not prevent a disqualified individual from running for office or getting elected, as Congress has the power to remove this disability before the individual takes office, leaving open the possibility for Trump to become eligible before inauguration.

The counter-arguments made for why Section 3 does apply to disqualify Trump

Opponents of Trump counter by asserting that the broad language of Section 3 includes all federal positions, including the presidency. This view challenges the notion that the presidency should be exempt from the rules preventing those who supported insurrection from federal office. They further argue that states have the right to enforce these qualifications to protect their citizens from disenfranchisement, pointing to Trump's actions to subvert election results as a form of voter disenfranchisement that justifies upholding the amendment against him.

The arguments against allowing states to enforce Section 3

The Supreme Court has heard arguments that allowing states to enforce Section 3 could lead to a host of issues, including overreach of state power, inconsistent application across states, and potential voter disenfranchisement. Mitchell claims that Congress must explicitly authorize states to disqualify candidates, while Justices Kagan and Alito express concerns about the lack of uniformity and the disproportionate impact on the Electoral College this could cause, warning of the dangerous precedent it might set for future elections.

Key justices seem skeptical Section 3 justifies barring Trump from the ballot

The Supreme Court seems hesitant to endorse Colorado's efforts to disqualify Trump from the ballot, with key justices displaying skepticism about the appropriate use of Section 3. Conservative and liberal justices alike fear voter disenfranchisement and the consequences of allowing one state to determine a candidate's eligibility. The Court appears inclined to allow voter choice, with the potential for a unanimous ruling that would preserve the Court's legitimacy and respect for the electoral process. This unanimous decision, as suggested by the skepticism, could favor not barring Trump from the ballot to avoid encroaching on voters' rights and adding strain to the Court's public image.

1-Page Summary

Additional Materials

Clarifications

Section 3 of the 14th Amendment to the United States Constitution prohibits individuals who have engaged in insurrection or rebellion against the U.S. from holding public office unless Congress grants them a pardon. It was originally intended to prevent former Confederates from holding office after the Civil War. The debate surrounding its application to disqualify Trump revolves around whether the presidency falls under the scope of this provision and if states have the authority to enforce it in elections. The Supreme Court is considering the interpretation and implications of Section 3 in the context of Trump's potential disqualification from running for office.
The 14th Amendment was ratified in 1868 after the Civil War to address citizenship rights and equal protection under the law. Section 3 of the amendment specifically targeted former Confederates by barring those who engaged in insurrection or rebellion from holding public office. This provision aimed to prevent former Confederate officials from reentering positions of power in the government. The historical context of the 14th Amendment's Section 3 was rooted in the Reconstruction era's efforts to address the aftermath of the Civil War and ensure loyalty to the Union.
Disqualifying an individual from running for office involves legal mechanisms that can prevent someone from being a candidate in an election. This can be based on various criteria such as criminal convictions, violations of specific laws, or constitutional provisions like Section 3 of the 14th Amendment. The process typically involves legal challenges, court decisions, and sometimes legislative actions to enforce the disqualification. Ultimately, the goal is to uphold the integrity of the electoral process and ensure that candidates meet the necessary qualifications to hold public office.
Allowing states to enforce Section 3 of the 14th Amendment could lead to concerns about overreach of state power, inconsistent application of disqualification rules across different states, and potential voter disenfranchisement. There are worries that this could create a situation where states have varying standards for disqualifying candidates, impacting the fairness and uniformity of the electoral process. Additionally, the potential for states to independently enforce Section 3 could have implications for the Electoral College and the overall integrity of national elections. The debate raises questions about the balance between federal and state authority in regulating the qualifications of candidates for federal office.
The concerns about the impact on the Electoral College stem from the potential for different states to enforce Section 3 of the 14th Amendment inconsistently, leading to varying rules on candidate eligibility across states. This could create disparities in how candidates are treated in different states during presidential elections, affecting the overall fairness and uniformity of the electoral process. Justices worry that allowing states to disqualify candidates based on Section 3 could disrupt the balance of power within the Electoral College and influence the outcome of elections. The fear is that such disparities could undermine the integrity of the Electoral College system and raise questions about the legitimacy of election results.
The Justices' skepticism about using Section 3 to bar Trump from the ballot stems from concerns about voter disenfranchisement and the potential implications of allowing one state to determine a candidate's eligibility. They are cautious about the impact on voter choice and the need for a consistent approach across states to avoid creating a precedent that could affect future elections. The Court's hesitation suggests a leaning towards preserving voter rights and maintaining the Court's impartiality in electoral matters. The justices seem inclined to prioritize the legitimacy of the electoral process and the rights of voters over potential restrictions on individual candidates.

Counterarguments

The interpretation that Section 3 of the 14th Amendment applies only to appointed officials and not elected ones like the President is debatable, as the text does not explicitly make this distinction.
The historical context of the amendment may have been focused on Confederate officials, but the language does not limit its application to that era or exclude elected officials from its scope.
Even if Congress has the power to remove the disqualification, it does not necessarily mean that an individual is eligible to run for office while still disqualified.
The argument that states enforcing Section 3 could lead to overreach and inconsistent application might be countered by the principle of federalism, which allows states certain powers to manage their own electoral processes.
Concerns about the lack of uniformity in enforcing Section 3 could be addressed through federal guidelines or Supreme Court precedent to ensure consistency.
The fear of voter disenfranchisement if a state disqualifies a candidate could be weighed against the potential disenfranchisement of allowing a candidate who may have engaged in insurrection to run for office.
The Court's inclination to preserve voter choice must be balanced with its responsibility to uphold the Constitution, which may include enforcing disqualifications outlined in Section 3.
A unanimous ruling to avoid barring Trump from the ballot could be seen as prioritizing the Court's public image over the legal merits of the case.

Learn more

Explaining Donald Trump’s 14th Amendment case at the Supreme Court

“Section Three encompasses the office of the presidency and someone who has taken an oath as president. On this point, the district court committed reversible error,” said the majority’s per curiam opinion.

Historical Context for the 14th Amendment’s Disqualification Clause

Section 3, Disqualification From Holding Office, bars anyone who has engaged in insurrection or rebellion, or given aid to those who have, from holding state or federal office.

Cato Scholars on Section 3 Disqualification

The court should enforce this powerful provision to disqualify Trump, and in doing so, protect both the nation and the rule of law.” Anastasia P. Boden, “Section 3 and the Fallacy of ...

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Kick Trump Off the Ballot? Even Liberal Justices Are Skeptical

The arguments Trump's lawyers make for why Section 3 of the 14th Amendment does not apply to disqualify Trump

The legal team representing former President Trump presents arguments for why Section 3 of the 14th Amendment—which pertains to disqualification from office—should not apply to him.

Presidents are not considered "officers of the United States" under the Constitution, so Section 3 does not apply to Trump

Jonathan Mitchell, an attorney for President Trump, asserts that the 14th Amendment's Section 3 does not cover Trump because the President does not fall under the category of an "officer of the United States" as used in the Constitution. This terminology, Mitchell says, only refers to appointed officials and intentionally excludes elected positions such as the President and members of Congress.

Section 3 focuses on restricting previously Confederate officials from holding appointed offices, not presidents elected by the whole nation

Expanding on this argument, Mitchell refers to the historical context of Section 3, which aimed at avoiding Confederate officials from returning to power through appointed positions. Ketanji Brown Jackson highlighted the difference between the concern over "these people" using the state apparatus to regain control and the idea that an insurrectionist could become President, a national figure, through election, suggesting this distinction differentiates Trump’s situation from the officials Section 3 originally targeted.