A lot of discussion has occurred in the past couple of days in the wake of the rulings by the Colorado Supreme Court, upholding a lower state court’s decision that Trump should be removed from the ballot on the grounds that he engaged in insurrection and is thus disqualified under Section 3 of the 14th Amendment, and the Maine Secretary of State’s decision to do the same.
Many people cheered the decisions and believe this to be the first step in disqualifying Trump in key states around the country.
But not so fast.
I’m urging y’all not to get your hopes up about this since you’ll probably end up very disappointed.
If these cases get to the Supreme Court – which they surely will – they will almost certainly reverse these decisions – and it will likely be unanimous with even the liberal justices voting to reject the states’ decision.
This is because a Secretary of State does not have the power to unilaterally remove Trump (or anyone else) from the ballot under Section 3 of the 14th Amendment based on an administrative hearing. By the same token, it is very likely that the Court will hold that a state court also lacks the authority to take such action based on evidence garnered in the civil case brought in Colorado.
I know this may seem to contradict what some legal commentators have been writing and saying on television. But that is because, for the most part, they are focusing on only one aspect of the issue and not telling the full story.
Constitutional analysis and application is extremely complicated and nuanced and does not lend itself to the kind of shallow commentary we’ve been seeing. Many of the commentators discussing this make it seem pretty simple “Donald Trump engaged in insurrection, the 14th Amendment prohibits people who engaged in insurrection from holding federal office, so BOOM, knock him off the ballot.”
But among the many aspects of Constitutional analysis that must be considered, there are two tracks that must be addressed: the “what” and the “how.” Most of these commentators – including Judge Michael Luttig and Professor Laurence Tribe – are focusing almost exclusively on the “what,” while ignoring the “how.”
The “what” is whether Trump engaged in insurrection as covered by the 14th Amendment. Most sane observers believe he did. But the analysis can’t and doesn’t end there because the 14th Amendment isn’t “self-executing,” i.e., it doesn’t automatically implement itself. There are additional steps that must be taken in order to enforce it – that is the indispensable “how,” also known as Due Process.
The drafters of the 14th Amendment Section 3 gave Congress the power to create a procedural mechanism for enforcement. But, Congress has not done that. That means there needs to be another mechanism for enforcing it, but that mechanism must comport with the 14th Amendment’s Due Process clause.
(There are also other procedural questions that must be addressed, such as standing, but that’s for another day).
Some observers claim that the Due Process Clause isn’t applicable because it only applies to the deprivation of “life, liberty and property.” However, the courts have generally treated the right to run for and serve in federal office as a property right. No less a jurist than Supreme Court Justice Salmon P. Chase has made clear that not only is Section 3 not self-executing, action taken under it must comply with the Due Process Clause. And, in fact, even the majority in the Colorado case recognized the necessity to comply with the Due Process Clause.
In particular, a person can’t just be declared an insurrectionist because we are sure he is or because we “saw it on TV.” There must be a fair and robust adjudicative process for drawing that conclusion and for applying the 14th Amendment prohibition to that individual. There is no question that a criminal conviction meets that standard of Due Process.
Had Congress set up a process for adjudicating guilt outside of the criminal justice system, that likely would have also complied with Due Process.
But here we have no criminal conviction and no Congressionally-authorized procedure. So the Supreme Court must now deal with how the 14th Amendment can be enforced.
The question the Supreme Court will likely have to deal with is whether, in the absence of a criminal conviction or special procedure, will any other process for disqualifying a federal officer from serving meets Due Process requirements.
Contrary to the slam-dunk some commentators have convinced their audiences this is, it is not clear how the Supreme Court would or should answer that question.
The Court could rule that Section 3 can be implemented only through a procedure Congress was authorized to create, but didn’t.
Or the justices could rule that, in the absence of any other mechanism set up by Congress, the only appropriate basis for determining whether someone engaged in insurrection under the 14th Amendment is a criminal trial and conviction of that crime (or it’s equivalent). And since Trump has not been convicted, the states can’t apply the 14th Amendment to him.
It’s also possible they will find that a criminal conviction isn’t necessary, but other types of adjudication are permissible – IF that adjudicatory process includes the same types of procedural and constitutional safeguards found in a criminal trial (e.g., full discovery and disclosure, strict rules for the admissibility of evidence, sworn testimony and with right to confront and cross examine accusers, etc.).
But, even if the Court finds that an alternative procedure may be acceptable, there is little doubt that it would conclude that a one-day administrative hearing conducted by a Secretary of State or a hearing held in a state civil action by a state court judge, don’t even come close to satisfying the 14th Amendment’s Due Process requirement.
Applying either standard, the Court is likely to reverse the states’ decisions to keep Trump off of their ballots
And therein lies the problem with many of the public comments that commentators have been making: They have completely left out the process issue and focused only on the substantive issue (“We all know he’s guilty, so what else needs to be decided?). But before the Court can even reach the issue of whether or not Trump actually committed insurrection and is, thus, disqualified from service, it must find that the process used at the state level satisfies the due process clause. And I have no doubt that it will find that the process used in the Colorado and Maine does not pass Constitutional muster.
And the justices would be correct. No state official should have that degree of power over federal elections and who can serve in federal office. While many people are thinking only of Trump, allowing such a process would also allow state officials around the country – including in Florida and Texas – to bar people from serving based solely on their unilateral declaration that they are disqualified under the 14th Amendment. More than chaos would ensue – that would trigger a Constitutional crisis and utter destruction of our democratic process.
I know this is not the take some people want, but if we are to be a nation of laws, we must apply those laws fairly and faithfully, even when it results in outcomes we don’t like. That will probably be the case here, so I’m encouraging everyone to refrain from jumping into the rabbit hole dug by commentators who aren’t telling the whole story. Instead, please approach this thoughtfully and stop demanding the legal process do what should be handled in the political process.
Instead of wasting precious time and energy hoping that Trump will be disqualified, we should focus our efforts on ensuring that Joe Biden and Kamala Harris get the electoral votes they need to win a second term, regardless who the Republican nominee may be.
Please shift away from trying to grapple with the hows and whats of the 14th Amendment and let’s keep our eyes on the prize.