Two seemingly contradictory impressions emerged from almost three hours of oral argument Thursday before the Supreme Court: The arguments in favor of Donald Trump's eligibility to be president again were quite weak, but the Supreme Court is likely to rule in his favor.
Based on the questions posed by the justices, it is difficult to imagine that five of them would agree with Colorado's decision to bar Trump from running for president as an insurrectionist under the 14th Amendment.
The question before the court is whether Trump is disqualified from the presidency for Section 3 of the amendment, which states that no official who “participated in an insurrection or rebellion against” the country “shall be a senator or representative in Congress, nor an elector of president and vice president, nor shall he hold any office, civil or military, under the command of USA.”
The oral argument focused primarily on three issues. First, does Section 3 require that a statute passed by Congress apply? Several of the justices indicated support for the view that the provision is not “self-executing” and cannot be enforced without a federal law. Justice Brett M. Kavanaugh, for example, said the “original public meaning” was that a statute is necessary to apply the section.
This argument is seriously flawed. For starters, the provision doesn't need a law to enforce it any more than other constitutional presidential requirements, including being at least 35 years old, being a natural-born citizen and not having already served two terms.
Furthermore, the amendment clearly defines Congress's role here: its last sentence gives lawmakers the power to exempt an insurrectionist from the provision. But the amendment does not require congressional action to enforce the section.
Importantly, in 1883 the Supreme Court declared that the 14th Amendment is “undoubtedly self-executing without any complementary legislation.” The primary authority to the contrary, relied upon by Trump's lawyer Jonathan Mitchell and invoked by Kavanaugh, is not a Supreme Court decision but an 1869 opinion by Chief Justice Salmon Chase for an appeals court. lower. As Justice Sonia Sotomayor noted, Chase later reached the opposite conclusion, determining that no statute was required for disqualification and that Jefferson Davis, the president of the Confederacy, was clearly disqualified from serving as president of the United States.
A second question that figured prominently in oral argument is whether Section 3 applies to the president of the United States or only to other federal offices. Despite being ideological opposites, Justices Neil M. Gorsuch and Ketanji Brown Jackson focused on the section's list of several positions without mentioning the president.
The problem with this argument is that Section 3 also says “any office, civil or military.” The Constitution repeatedly refers to the president as an official. As the Colorado Supreme Court explained, senators, representatives, and electors are listed as members of elected bodies that are No considered officials according to the Constitution. But the president is a United States official included in the phrase “any office.”
The court's conservatives pride themselves on adhering to the original meaning of the Constitution, and those who drafted and ratified the 14th Amendment certainly considered Section 3 to apply to the president. This was explicitly stated on the Senate floor.
Gorsuch also noted during the argument that Section 3 prevents insurrectionists from only being president, not from running for office. But that's an absurd distinction that could lead to addressing whether Trump is disqualified only after being elected, a nightmare scenario.
The third question occupying much of the debate is whether Trump actually participated in an insurrection. Judge Samuel A. Alito Jr. questioned the evidence on the matter, while Kavanaugh noted that the former president has not been convicted of insurrection. But a Colorado court held a five-day hearing on that question in which Trump could have testified, after which the judge concluded that he had indeed participated in an insurrection. And nothing in Section 3 or his story requires a criminal conviction.
Another pair from different ends of the court's ideological spectrum, Justices Elena Kagan and Amy Coney Barrett, questioned whether a state court should be able to make such a determination. But each case must begin in a state. Ultimately, it's not a matter of a state deciding, but of the U.S. Supreme Court examining the facts and the law (as courts always do) and deciding whether Section 3 disqualifies Trump.
This case gives the court an opportunity to show that it follows the law and the facts, not just the political preferences of the judges. My sense from the oral argument is that we will have reason to be disappointed once again in that regard.
I hope to be wrong. If the court ignores the clear language and meaning of the 14th Amendment, it will be a loss for the Constitution and the country.
Erwin Chemerinsky is an Opinion contributor and dean of the UC Berkeley School of Law. His latest book is “worse than anything“The dangerous fallacy of originalism.”
