Last month in the Atlantic, Harvard Law Professor Emeritus Laurence Tribe and former federal Circuit Judge J. Michael Luttig argued that Donald Trump is disqualified from running for President pursuant to Section 3 of the 14th Amendment. Having concluded that Trump participated in an attempt to overthrow the election, they assert that disqualification is automatic and requires no conviction for insurrection, rebellion, or aiding the enemies of the United States. As a consequence, state officials are presently empowered to refuse to permit Trump to run in the primaries, and, if he is selected to be the Republican candidate for President, deny him a place on the ballot for the general election.
While I believe their analysis is flawed, even assuming that it is correct, they fail to address a fundamental question. The United States Supreme Court will make the ultimate determination whether Section 3 is self-executing, that is, whether a criminal conviction is a precondition to disqualification or whether state officials can make that determination on their own. What if the Supreme Court holds that Section 3 is self-executing, but that it is up to each individual state to determine whether Trump can be on the ballot? What then?
Tribe and Luttig draw heavily on the analysis of Section 3 by two highly regarded conservative law professors, William Baude and Michael Stokes Paulsen that is contained in a law review article to be published next year in the University of Pennsylvania Law Review.
Baude and Paulsen contend that Section 3 is crystal clear and means precisely what it says: “No person shall … hold any office … under the United States… [who] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Although Trump has not been convicted of insurrection, rebellion, or aiding an enemy of the United States, they say that doesn’t matter, that there is sufficient evidence of his culpability for those acts in the public domain, and that because the language of Section 3 is clear, it must be applied without consideration of the consequence of their interpretation. But what if the consequences of their argument are months of civil disorder and violence?
Tribe and Luttig brush aside this concern, saying, “The process that will play out over the coming year could give rise to momentary social unrest and even violence.”
“Momentary?” This is magical thinking that fails to consider the actual consequences of a “leave it to the states” decision by the Supreme Court.
By leaving it to the states, there are two possible outcomes. If the Supreme Court were to rely on the concurrence in Bush v. Gore, in which Justice Clarence Thomas joined, it is the legislature and not the courts that must decide whether Trump can be on the ballot. Currently, Republicans have control of the legislative and executive branches in 22 states and the Democrats in 17, so it is likely that Trump would be on the ballot in at least 22 states.
What happens if the other 17 states decide that he is disqualified and cannot be on the ballot?
In 2020, 74 million voters from across the United States voted for Trump. How will tens of millions of voters react if they are denied the opportunity to vote in 17 states?
If the Supreme Court leaves the decision to the officials in each state who run the elections, usually the Secretary of State, now held by 34 Republicans, the exact same situation could occur.
But what if the Supreme Court agrees with the proponents of automatic disqualification and holds that Trump cannot run for President at all. Do you believe that 74 million people will accept that?
Forty-one states permit voters to write in their choice for President. What if 88 million Americans vote for Trump as a write-in candidate, and based upon those votes, Trump would win a majority of the electors to the Electoral College? In that case, voters from around the country will seek review before the Supreme Court, and under the majority opinion in Bush v. Gore, the Court may find that the procedure used by the states denied the voters the equal protection of the law and throw the case into the United States House of Representatives. In that event, the proponents of disqualification will have handed Trump what he tried to take by force and stealth, a vote in a Republican-dominated House of Representatives.
Of course, there is a possibility that the Supreme Court will hold that Section 3 is not self-executing. That happens to be the correct legal result. Baude and Paulsen spend a majority of their 126-page law review article explaining why Section 3 must be self-executing. Their argument is based on the language used by the drafters of the Amendment and a comparison of Section 3 to other provisions of the Constitution that do not require further legislation by Congress to implement.
In so arguing, Baud and Paulsen, and later Tribe and Luttig, ignore one overriding principle of constitutional interpretation. They do acknowledge that it does not matter what the drafters of the 14th Amendment intended, because under textual analysis (which is the guiding principle of constitutional interpretation followed by the conservative wing of the Court) all that matters is what the written words of the Constitution say. But in so arguing, they ignore a bedrock principle of statutory construction. As Justice Samuel Alito explained in Tennessee Wine & Spirits Retailers Ass’n v. Thomas, the Supreme Court will not rely upon a literal reading of a constitutional provision that leads to absurd results. Those who claim that Section 3 is self-executing fail to understand that driving our nation headlong into political chaos and likely civil unrest is just such an absurd result.
These authorities have also engaged in a highly selective reading of the 14th Amendment. It has five sections. Section 1, perhaps the most well-known, was intended to protect formerly enslaved people from laws limiting their rights. But it also established the rights of all citizens to due process and equal protection of the law. Section 2 deals with the apportionment of representatives; Section 4, with the national debt. And then there is Section 5, which states: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Baude and Paulsen dismiss Section 5 on the grounds that other provisions of the 14th Amendment have not required enabling legislation. But so what? None of the provisions they cite can so readily be applied with such devastating consequences.
This issue could have been avoided had the Justice Department’s special prosecutor, Jack Smith, charged Trump with insurrection or rebellion or aiding our enemies, which Congress has made a crime. Despite a recommendation by the House of Representatives’ Jan. 6 Select Committee, Smith chose not to. Had he, there would be no need for the constitutional crisis that would arise from the interpretation of the law advocated by Tribe, et al. If there were a conviction, the federal courts would see that it was enforced in every state and the Supreme Court would likely stay out of the fray—and it is a fray we will have if Tribe and company get their way.
