Can Donald Trump be constitutionally barred from being president of the United States a second time after the unprecedented and tragic events of Jan. 6, 2021? Next Thursday, the U.S. Supreme Court will hear arguments on this very question in Trump v. Anderson. The answer will depend on the meaning of a long-obscure portion of the Constitution: Section 3 of the 14th Amendment.
Adopted just three years after the end of the Civil War, the 14th Amendment is mostly known for prohibiting states from denying people due process or equal protection of the laws. The amendment also applies most of the Bill of Rights against the states so that they could not infringe those rights.
Yet there was a concern so soon after the war that those who had been involved in the Southern Confederacy would, for example, seek to be elected to Congress or serve in the national government as an officer.
So Section 3 of the amendment states:
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.
This constitutional text raises several questions at issue in Trump v. Anderson, with future columns seeking to unpack each of these issues and present the arguments on both sides. Here are the questions:
- Does this provision apply to the President, both as to which offices are disqualified and who engaged in insurrection?
- What is an insurrection, and what does it mean to “engage” in insurrection?
- Who gets to determine whether someone engaged in insurrection? What due process is required for such a determination?
- Is a criminal conviction for insurrection required for the constitutional prohibition to occur?
- Does the First Amendment protect an insurrectionist’s statements?
- If someone cannot hold office, can they be prohibited from running for it?
- Does Congress have to bring Section 3 into effect by passing implementing legislation?
To bar Trump from the ballot would require every one of these questions being answered against him, and thus for him to prevail only one must be answered for him. The odds are thus in his favor by sheer constitutional math.
This will be a difficult case for the court for a few reasons. First, the number of briefs filed in the case is large, but the time to read and study them is short. Aside from the briefs from the parties, over 70 amicus briefs (from interested individuals and organizations) have been filed, meaning there are more than half a million words to study by next Thursday. This is a much shorter timeline than just over three months that is usually the minimum time for the court to digest briefs before argument.
Compounding this truncated timeline is the case’s complexity. Most cases present one or two issues for the court to decide. This one presents as many as 10. And there is almost no precedent on these issues for the court to rely on.
That being said, the most likely scenario is that the court will address either all or just one of these issues, not somewhere in between. That’s because the court will have to reach them all if it is to rule against Trump. But if the court rules in his favor on just one, it need not reach the rest.
And there is nothing that demands the court pick any particular issue over another if it is only to reach one, assuming they are all fairly raised for the court to consider. This is where the optics of the situation may lead the court, or at least a majority of it, to decide the case on narrow, technical grounds rather than taking up the most controversial aspects of the case, such as whether Trump engaged in insurrection.
The court, after all, is in some ways the weakest branch of government, though it has grown immensely in strength from its birth. As Alexander Hamilton observed in Federalist No. 78, the court lacks the sword (which the president yields) and the purse (which Congress controls). So the court has “neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Still, the court is willing to go broad and weather controversy when it feels the Constitution requires such, as it showed with the Dobbs case overruling Roe v. Wade and returning the issue of abortion to the states. We’ll likely know more about which way a majority of the Court is leaning after next Thursday’s oral arguments.
James C. Phillips is the director of the Constitutional Government Initiative and an associate professor at Brigham Young University’s Wheatley Institute. He has published dozens of academic articles and worked on over 30 cases at the U.S. Supreme Court focusing on issues related to the Constitution and constitutional interpretation.