Before today, Law I posted my article criticizing the Supreme Court’s recent ruling in Trump’s Section 3 disqualification case. Here is an excerpt from the introduction:
The recent unanimous decision of the Supreme Court n Trump vs. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the basis that Section 3 is not “self-executing”. In a per curiam opinion jointly written by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures . This result was foreseeable on the basis of the oral argument… But the Court still interpreted the issue seriously wrong…
Section 3 states that “No person” may hold any state or federal office if he or she has previously been “a member of Congress, or…an officer of the United States” or a state official and then “engaged in insurrection or rebellion against the same, or given aid or comfort to his enemies.”
By focusing exclusively on the issue of self-execution, the Court left for another day all the other issues at play in the Trump case, such as whether the January 6, 2021 attack on the Capitol qualified as an “insurrection,” whether Trump “engaged ” in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an “officer of the United States” covered by Section 3. Judges may hope they can avoid ever having had to decide on these questions.
In my view, Trump deserved to lose on all of these points, and the Colorado Supreme Court rightly rejected his arguments on the matter. But I think he had a plausible argument as to whether his involvement in the January 6 attack was extensive enough to qualify as “engaged” in the insurrection. At least he had a better argument there than about self-execution. The Court’s resolution on this last issue is based on seriously flawed reasoning and relies largely on dubious policy arguments that invoke the exaggerated danger of a “patchwork” of conflicting state resolutions on Section 3 issues. Even the adventure The Court’s policy has been indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.