How Can the Court Extract Itself from the Trump Disqualification Quandary with the Least Damage to the Republic?

Q: What’s the single most important thing to get clear about if you want to understand why people behave as they do?

A: That almost all the time, what people wind up doing is what they want to do.

Q: What does the Supreme Court want to do with today’s disqualification hot potato?

A: Resolve the case (a) with the least impact on time-honored democratic processes, thus to preserve (or some might say restore) its role as a politically neutral body, and (b) without deciding whether Trump did or did not “engage in” an “insurrection,” which is the most brutally divisive and incendiary political question in the country right now.

Q: And how is the Court going to do that?

A: By deciding the case on the narrowest responsible ground consistent with law — which fortunately happens to be the long-accepted paradigm for judicial modesty and restraint.

Q: And what is that ground?

A: The one supplied to me by a wonderfully bright constitutional lawyer and Ringside reader. Here it is:

A lot of attention is being paid to parsing the first sentence of Section 3, the one that roughly speaking says no former officer of the United States who engages in insurrection or rebellion against the United States or gives aid and comfort to enemies of the United States may hold a federal office.  This is the provision the Colorado Supreme Court held bars former President Trump from appearing on Colorado’s primary ballot, and that is expected to be front and center in today’s Supreme Court argument.

But one provision that is being under-discussed in the debate is the second sentence of Section 3.  That sentence gives Congress the power, by a 2/3 vote, to remove any disability imposed by the first sentence (the one that is getting all the attention about having engaged in insurrection).

This is important because Colorado’s basis for excluding the former President is that it doesn’t want on its ballot someone who is ineligible to hold the office of President.  But because Congress can lift any disability the former President may be under, what Colorado is doing is actually preventing its voters from voting for someone who may well be eligible to serve.  Indeed, if the former President wins the popular vote, it’s hard to imagine that Congress, and particularly the new Congress that would come in with him, would not pass a resolution saying he is eligible. 

This is important not only as a matter of prudence, but also as a matter of law. There is Supreme Court precedent saying rather unequivocally that States, while they have some powers relating to federal elections, are not allowed to impose qualifications for holding federal office beyond those imposed by the Constitution, or use ballot access rules to do so.  That’s why in United States v. Thornton, 514 U.S. 779 (1995), the Court struck down a state law trying to limit the terms of members of the House and Senate by barring from the ballot any candidate who had served more than a certain number of terms.  Similarly here, the Colorado Supreme Court’s ballot access ruling is reasonably understood as imposing a categorical bar on Trump serving as President, as opposed to what at most section 3 can be understood as imposing, which is a conditional bar that Congress can lift.   Nor is the prospect of Congress lifting the disability so remote or speculative that the Colorado Supreme Court is justified in ignoring it.  To the contrary, it seems decently likely that if Trump is allowed to be on the ballot, and wins the election convincingly — as a number of polls suggest may well happen — Congress would defer to the electorate and lift any disability based on section 3 that might otherwise exist.

Finally, note that the lifting of the disability can be done either by the current Congress or by the new Congress, which takes over on January 3, 2025, more than two weeks before the new President would take Office.