The Supreme Court Will Need to Settle Trump’s Qualification. It Should Do So as Soon as Possible

The theory that Donald Trump is disqualified from being president again under Section 3 of the 14th Amendment is not going away. Section 3 disqualifies anyone from “hold[ing] any office, civil or military, under the United States, or under any state” if they “have engaged in insurrection or rebellion against” the United States, “or given aid or comfort to the enemies thereof” after previously swearing an oath “to support the Constitution of the United States.” As I have written at length (see here and here), if Section 3 is read as it was understood and applied at the time of its 1868 ratification, Trump is not disqualified over his role in the events of January 6, mainly for two reasons:

• First, the Reconstruction-era Congress consistently ruled that advocacy inciting an insurrection or rebellion before the fact did not consist in “engaging” in such an insurrection or rebellion. Trump may have inspired the attack on the Capitol and created the conditions in which it occurred, but he was not involved in the attack once it began.
• Second, even assuming we consider the Capitol riot a rebellion or insurrection, its participants did not become “enemies” of the United States, a term with a settled historic meaning: sovereign or purportedly sovereign enemies during wartime. Thus, nobody can be held to have given them “aid and comfort.”

That being said, the legal question isn’t actually settled until it has been contested — and the only authorities in the country with the power to settle it on a nationwide basis are the Supreme Court or Congress. And unless it were to pass a statute removing any disability (an extraordinarily unlikely event requiring a two-thirds majority, but one with precedent in the Amnesty Act of 1872), Congress only gets to be heard on this after a full national election has been conducted and it is counting electoral votes to decide whether to disqualify the only real opponent to the sitting president. Recent experience should make it obvious why we do not want that decision made under those circumstances.

If the Supreme Court wants to duck the issue — and it is likely that none of the justices want any part of such a case, given how much ugliness it will rain down upon their Court and probably their homes — it could hope that nobody ever disqualifies Trump and no case properly raising the issue comes to its doorstep. It is, after all, unlikely that any federal court will rule on the matter because nobody with standing to raise it is likely to file suit. There is a strong argument, backed by precedent, that ordinary voters do not have standing to sue over the qualifications of a candidate for office. That is likely a problem for suits by self-anointed “watchdog” groups such as Citizens for Responsibility and Ethics in Washington (CREW). But even if there is never a proper vehicle filed in federal court, there are other avenues by which someone — a secretary of state, a state court petitioner, a Democratic governor, maybe even a county election official depending upon state law — could rule that Trump is disqualified. Because Section 3 neither has nor requires a specific enforcement mechanism, but simply says that “no person shall” hold federal offices if disqualified by these actions, it appears to be enforceable by anyone with the power over elections or over the seating of elected officials. Presumably, even Chief Justice John Roberts could, if he felt it constitutionally required, refuse to swear Trump in.

One way or another, the risk that somebody in the process might disqualify Trump is a ticking time bomb. It could destroy the legitimacy of the next national election, and given the acrimony over the previous two elections, that might cast us into the worst crisis of legitimacy since 1860. But no matter who tries to disqualify Trump, in what setting or on what authority, because the question is one of federal law, there is little doubt that Trump would have standing to challenge this in federal court — all the way to the Supreme Court.

Perhaps predictably, for now, political actors are acting in their political interests in addressing this issue. In Georgia and Colorado, Trump-critical secretaries of state of each party have indicated that they prefer that the issue be settled in court rather than unilaterally by them or their offices. Brad Raffensperger, for example, has pointed to Georgia law that delegates the issue to a state administrative law judge to first hold a hearing — as was done when a similar challenge was raised last year against Marjorie Taylor Greene. Democratic secretaries of state in Michigan, Minnesota, and Arizona have argued that either the Supreme Court or their state courts should make the call. One can debate how much of this is a desire to defer to voters, how much is a cynical fear of taking responsibility, and how much is partisan interest in delaying any decision until — as nearly every elected Democrat wants — Trump has secured the Republican nomination.

Republicans, of course, have different incentives: The party (at least those elements in the party more interested in winning elections than in fundraising off grievances) has an overwhelming interest in ensuring that the eligibility of its nominee to appear on the November ballot and be sworn into office in the event of a victory be settled before voting begins to select that nominee. But many Republicans are afraid as always to be publicly seen machinating against Trump. Jason Torchinsky, a lawyer who has done work for campaign groups affiliated with Ron DeSantis, Vivek Ramaswamy, and Chris Christie, has reportedly been exploring Section 3, but again, he would need someone with standing to sue to force the issue.

The Court has one immediate opportunity to address the issue. John Anthony Castro, a Texas attorney conducting a write-in campaign for the Republican nomination, filed suit in August in the federal court for the Southern District of Florida. His was not the only such suit, but thus far, the only one by a purported candidate rather than a voter or public-interest group. The court dismissed his case for lack of standing. He has also filed suit in Wyoming, Utah, Oklahoma, North Carolina, West Virginia, Montana, Kansas, and Idaho state courts. Castro has petitioned the Supreme Court for certiorari, representing himself pro se. Trump didn’t file a response in the Supreme Court, allowing the petition to be heard faster. The Court is set to consider his petition in its conference of September 26, and could announce by October 9 whether it will hear the case. While Castro’s federal suit would require a threshold standing decision, it will likely not be the last such opportunity. The Court should take up its constitutional responsibility to settle the question — or at least the legal standards for the question — at the earliest possible moment.