There are two significant issues that are anticipated to be decided by the Supreme Court this year. The first is Trump’s claim of absolute presidential immunity. I will not spend that much time on that claim since I would not be surprised if it is rejected by a unanimous Supreme Court. As the special counsel argued, Trump’s argument, if accepted, would allow a President who orders the National Guard to murder his most prominent critics to be immune from criminal prosecution.
Instead, I will address the second case, where there has been a split in rulings by various courts and states’ secretary of states, namely whether Trump can be barred from seeking election as President based on the insurrection clause of the Fourteenth Amendment section 3, which reads as follows:
“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 member of Congress, or as an officer of the United States, or as a 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. But Congress may by a vote of two-thirds of each House, remove such disability.”
One of the arguments is that to take it out of the voters’ hands is anti-democratic. At first blush this sounds reasonable. This was my initial reaction. However, if you think it through, the argument fails to hold water.
The constitution is the supreme law of the land. The constitution provides that presidential elections are not decided by who has the most votes; it is decided by the electoral college. The electoral college is not true democracy since everyone’s vote is not equal. For example, since there is a minimum of three electors in each state (two senators and one representative), the number of voters to have an elector in a state with a low population will be significantly less than states with higher population. Also, with an electoral college, it does not matter how much you win by. You receive all the electors.
There are provisions in the constitution as they relate to the election of the president that limit the ability of the voters to make a choice. There is a minimum age requirement of 35 years for a person to be elected president. The person has to have been born in the United States and for fourteen years been a resident within the United States. It is not good enough to become a citizen. Individuals who do not fit these requirements are barred even if the majority of the country would want them to become president.
Another part of the Constitution states that “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The voters elected the President, yet it is not the voters who decide whether to remove the president. It is up to Congress to decide whether the President engaged in treason, bribery, or other high crimes and misdemeanors. There is no requirement that the President be convicted of a crime. There is nothing in the Constitution that defines high crimes or misdemeanors. It is left up to Congress to decide whether the conduct constitutes a high crime or misdemeanor.
The provision in the Fourteenth Amendment prohibits a person from running for President and other offices if they engaged in insurrection or rebellion. It is not left to the voters to make this determination. There was a logical reason this was put into the Constitution. It was passed by the Senate on June 13, 1866, and ratified by 28 out of 37 states on July 9, 1868. It was after the Civil War. Many of those who rebelled against the United States and fought in the Civil War or who were part of the Confederacy were still very popular in the South. If it was left to the voters of those states, then these individuals would have been elected. Although it was less likely for a president to come from the states that formed the Confederacy, it was not a guarantee. The risk was too great. It was not too far-fetched, since the southern states would have united behind one candidate, a former confederate, and the rest of the country would be split. The point is that there is conduct that is so detrimental to the county that it disqualifies a person from ever obtaining office. The amendment does give Congress the power to set aside the disability. In other words, Congress, by a vote of two-thirds of each chamber, can allow the person to run. In sum, the argument that it is antidemocratic to not allow Trump on the ballot based on the Fourteenth Amendment is meritless.
There is no requirement in the Fourteenth Amendment that the person has to first be convicted of a crime involving the alleged conduct. There are some other issues, such as what constitutes “engaged in an insurrection and rebellion” and thus whether Trump’s conduct falls within the standard. Also, who makes the determination? Is it the state official, the courts, or only Congress can do so? Is there is a due process requirement? If so, was Trump given due process?
I do not think anyone involved wanted to be put in the position to decide whether or not Trump should be allowed on the ballot. However, the petitioners, many of whom were registered Republicans, under the law had the right to bring the issue up in various states and thus it was proper state official and/or Court had to make the determination. Clearly, some courts and officials wanted no part of it and found technical ways to dismiss the petition. Others felt that they had no choice but to decide the petition on the merits. The Colorado Supreme Court in a 4 to 3 decision and the Maine Secretary of State determined that the law warranted this drastic step. Others disagreed. That is why the Supreme Court will be forced to address the issue.
Trump likes to play the victim. However, even if you do not think he should be kicked off, you must admit that Trump put himself in this position by his election lies and conduct leading up to and during January 6. He has no one else to blame but himself. That is why the issue is being decided now and it has never happened before. No person has ever acted like Trump and then tried to become President.
The Supreme Court may ultimately decide that the determinations of the Colorado Supreme Court and the Maine Secretary of State were incorrect. However, claiming that they are being antidemocratic is not one of them, since they are relying on the constitution.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
