What will (should) the Supreme Court do about Trump Bans?
It was recently reported that the Supreme Court will take up the Colorado Supreme Court decision that removed President Trump from the ballot in the Centennial State. That comes as no surprise. Various state courts and officials looking at the Fourteenth Amendment are arriving at opposite decisions regarding Trump’s eligibility to appear on the November ballots. The crosscurrent of decisions has created political chaos and a constitutional crisis. Only the U.S. Supreme Court can resolve the various issues.
The progressive establishment is proffering a narrative claiming that Section 3 of the Amendment clearly and definitively bans Trump from holding the office of President. That sort of simplistic certainty may hold sway in the court-of-public-opinion in banning any person “… 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.”
The ineligibility of a person to hold office after “engaging in insurrection or rebellion” is a provision of the FEDERAL Constitution. No state can nullify that provision. Only Congress, by two-thirds vote, can “remove such ineligibility.”
In the case of federal candidates, the Constitution and federal laws apply. No state can override the federal ban on candidates for President who are younger than 35 years of age or a born citizen. No state can elect U.S. senators younger than 30 years old or U.S. House members who are less than 25. No state can elect as U.S. senator or House member who is not a legal resident of the state. In the case of House members, states can create congressional districts for voting, but the states cannot require that members of Congress reside in the districts.
In terms of the qualifications and disqualifications of FEDERAL candidates, it is clearly the purview of the FEDERAL government.
In terms of the President of the United States, it is again the Constitution and federal laws that govern eligibility and ineligibility. That strongly suggests that in terms of enforcing the insurrection ineligibility, it would require FEDERAL action and federal laws based on the Constitution.
That would suggest that state courts play no role other than the management of elections in accordance with FEDERAL laws as they pertain to federal candidates. And there is a federal law – 18 U.S. Code 2383, which states:
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
The problem remains. It is as vague as Section 3, itself. There is no specific definition of an insurrection in the legal codes. And it does not resolve the question as to whether state courts can enforce it. We can look to the past to see how courts may have defined insurrection in real cases – and there are a few.
- In 1859, on the eve of the Civil War, John Brown was convicted of insurrection for an armed attack on Harper’s Ferry Arsenal as part of a plan to launch a slave uprising.
- Jefferson Davis was indicted for treason and insurrection in 1866 because of the Civil War. He was never tried. He was pardoned by President Andrew Johnson.
- Puerto Rican nationalists were convicted of insurrection in 1950 for armed attacks on a governor’s mansion and the U.S. Capitol and sentenced to prison. There were eventually pardoned by President Carter in 1979, just prior to leaving office.
- Eugene Debs was convicted of espionage in 1919 by encouraging young men to resist the draft. He was sentenced to 10 years in prison but was pardoned by President Harding in 1921.
With the possible exception of Debs, all the other cases were clearly armed actions designed to overthrow the government of the United States – even if for noble reasons as in the case of John Brown. Also, these were all cases handled in the federal court system.
Since 1919, the legal threshold for criminal insurrection has been lowered – if not effectively eliminated. None of the violent revolutionary activities of the 1960s – such as those engaged in by the Weathermen leaders Bill Ayers and Bernadette Dohrn or the occupation of Portland by a group holding a zone declared to be autonomous from the American government — were ever tried for insurrection. And those convicted of armed insurrection were granted presidential pardons.
Throughout all the past cases, there has never been a clear definition of insurrection. That seems to be the challenge of the current Supreme Court.
The Trump case is unique, of course. He was the President of the United States, elected by the people through the Electoral College. It is a national election carried out by Electors from the several states.
What the folks in Colorado and Maine – so far – are saying is that one court, one person in one state can essentially defeat a presidential candidate nationally by denying him or her both popular and electoral votes. That simply cannot be allowed to stand.
What the Supreme Court should – and I hope will – do is declare that Section 3 of the Fourteenth Amendment can only be addressed by the federal government – Congress and the federal courts. That means the possibility of Congress passing a law to define criminal insurrection more clearly — that a person so accused would have to be found guilty in a federal court before the insurrection clause of the Constitution can be invoked. It should clearly decide that states have no jurisdiction in the matter.
Since the eligibility to hold public office is exclusively determined by the federal government, it is reasonable to assume that only the federal government would be charged with determining ineligibility. So, there ‘tis.