The Constitution has a right to defend itself, but Trump also has a right to due process.
Republican presidential candidate and former President Donald Trump speaks to guests at a campaign event on December 19, 2023, in Waterloo, Iowa. Scott Olson/Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Shortly before Christmas, the Colorado Supreme Court dropped a bombshell opinion ruling that former President Donald Trump must be removed from the 2024 ballot because of his failed effort to overturn the 2020 election and his successful incitement of the January 6 riot at the US Capitol. Maine’s top elections official reached a similar conclusion about a week later, removing Trump from the ballot in that state.
This issue is now barreling toward the US Supreme Court, in a case now known as Colorado Republican State Central Committee v. Anderson.
Last Wednesday, the Colorado Republican Party asked the justices to take up the question of whether Trump may serve as president after attempting to overthrow the US government. While many of the Colorado GOP’s arguments are meritless and should not be taken seriously by any court, they are correct about one thing: The Supreme Court needs to resolve this case as fast as it can.
Indeed, the plaintiffs in the Anderson litigation — six Colorado voters who seek to remove Trump from the ballot in that state — agree with the GOP that the US Supreme Court needs to hear this case on an expedited basis. They filed their own brief explaining that “voting in Colorado happens mostly by mail and will begin for in-state residents once the ballots are mailed out on February 12.” Accordingly, they “propose a schedule that will allow for briefing and argument in time for a [Supreme Court] decision by February 11.”
The case turns on a previously obscure provision of the 14th Amendment, which provides that anyone who previously held a high office requiring them to swear an oath supporting the Constitution is forbidden from holding a similar office if they “have engaged in insurrection or rebellion” against that Constitution.
The Colorado Supreme Court concluded that Trump engaged in an “insurrection” because he spent months falsely claiming that the 2020 election was “rigged.” He encouraged his supporters to “fight,” suggesting that Democrats would “fight to the death” if the shoe were on the other foot. And Trump named then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.
But there is precious little case law laying out what this provision of the Constitution means, or defining key terms like “insurrection” or what it means to “engage in” such an attack on the United States. Since the period immediately following the Civil War, there has not been much litigation involving disloyal public officials who joined an insurrection against the very system of government they swore to defend. So courts asked to interpret the 14th Amendment’s Insurrection Clause — including the Supreme Court — must do so without the ordinary guideposts judges look to when reading the Constitution.
The Colorado GOP’s brief makes three legal arguments in favor of letting Trump remain on the ballot. Two of these arguments are silly and unpersuasive and should be ignored by the Supreme Court, but one of them raises a very plausible case for, at the very least, delaying the decision whether to disqualify Trump until after one of his criminal trials is over.
In addition to their legal arguments, Colorado Republicans also make a political argument for keeping Trump on the ballot — removing him would deny voters “the ability to choose their Chief Executive through the electoral process.” This purely political argument has garnered sympathy from many observers, including outlets such as the New York Times.
This final argument, if taken seriously by a majority of the justices, could render the 14th Amendment’s Insurrection Clause a dead letter — because it would prevent it from operating in the one circumstance when such a constitutional provision is needed.
The Constitution has a right to defend itself
Trump’s attempt to overturn the 2020 election, as ham-handed and ineffective as it was, was a direct attack on the Constitution of the United States. The Constitution lays out a process by which American presidents are chosen, and that process chose Joe Biden in 2020.
Nevertheless, the various legal proceedings challenging Trump’s ability to serve as president again have widely been portrayed as anti-democratic by Trump, his allies, and a few reporters. As the New York Times’s Charlie Savage wrote shortly after the Colorado Supreme Court’s Anderson decision, that case “pits one fundamental value against another: giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law.”
There are two rebuttals to this claim. One is that democracy, as Harvard political scientists Daniel Ziblatt and Steven Levitsky wrote shortly after Trump’s rise to power, “is a game that we want to keep playing indefinitely.” One of the fundamental premises of all democratic systems of government is that elected officials must periodically stand for election, and that they lose their authority if they lose their popular mandate.
Trump, by contrast, attempted to make the 2016 election the last presidential election that mattered (at least for as long as he wanted to hold power). There is nothing democratic about canceling elections or about refusing to abide by their results.
Nor should the 14th Amendment be read more cautiously because Trump still enjoys a broad base of popular support in some parts of the country. Indeed, allowing insurrectionists with significant public support to stand for office would defeat the whole point of the Constitution’s Insurrection Clause.
Unpopular insurrectionists will never get elected to office in the first place because they are unpopular. The whole point of the Insurrection Clause is to bar individuals who enjoy enough popular support that they could conceivably regain high office, not to impose a legal ban on candidates who are just going to lose their election anyway.
Of course, the fact that the Insurrection Clause is only needed when a politician hostile to the Constitution enjoys broad public support raises its own problems. Among other things, the most strident Trump supporters — the very kind of people who invaded the Capitol on January 6 — may not respond peacefully to a decision removing their political leader from the ballot.
But these concerns can, at least, be mitigated by ensuring that the process used to disqualify Trump is ostentatiously fair, and that it complies with constitutional due process guarantees — which brings us to the GOP’s strongest argument against the Colorado Supreme Court’s decision removing Trump from that state’s ballot.
The GOP’s strongest argument for keeping Trump on the ballot — at least for now
The Colorado GOP does raise one fairly strong legal argument that supports deferring the question of whether Trump should be removed from the 2024 ballot until, at least, after he is convicted of a crime or otherwise determined to have engaged in insurrection by a federal trial court.
In Ownbey v. Morgan (1921), a case that admittedly had nothing to do with the Insurrection Clause, the Supreme Court said that “it cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy.” This means that private litigants ordinarily cannot sue to enforce this amendment, absent some state or federal statute authorizing such lawsuits.
Ordinarily, this question of whether the amendment is “self-executing” doesn’t even come up in 14th Amendment litigation, because Congress passed a law known as “Section 1983,” which allows private suits against state officials who deprive a plaintiff “of any rights, privileges, or immunities secured by the Constitution and laws.”
So, for example, if a government official refuses to enroll a Black student in a public school because of that student’s race, in violation of the 14th Amendment’s guarantee that no one shall be denied “the equal protection of the laws,” that student may file a Section 1983 suit because they were denied the right to racial equality “secured by the Constitution.”
But the plaintiffs in Anderson do not claim that their personal rights are violated if Trump appears on the ballot in Colorado, nor could they reasonably claim that they are. If Trump is allowed to run for election in 2024, that will impact all Americans in the same way — rather than impacting these six plaintiffs in any way that is specific to them. So Section 1983 does not permit them to sue, and there does not appear to be any other federal statute authorizing private litigants to sue to enforce the Insurrection Clause.
That said, the Colorado Supreme Court determined that a state statute permitting voters to challenge candidates’ eligibility to run for office does permit suits seeking to enforce the Insurrection Clause, and states often have the power to pass laws permitting their own courts to enforce the Constitution. Colorado could, for example, pass a law providing that any state official who refuses to enroll a public school student because of the student’s race will be fired, even though the Constitution does not mandate that state employees who engage in race discrimination must be terminated.
But, as the Colorado GOP warns the justices, the Colorado Supreme Court’s decision also means that “individual litigants, state courts, and secretaries of state in all 50 states plus the District of Columbia have authority” to determine which candidates must be removed from the ballot for violating the 14th Amendment. And, while there is no reason to believe that Colorado’s judges acted in bad faith when they removed Trump, it’s not hard to imagine what could happen in states with less responsible judges if the Colorado decision is allowed to stand.
Imagine, for example, that the Florida Supreme Court — which is made up entirely of Republican appointees, most of whom were appointed by far-right Gov. Ron DeSantis — were to invent some completely fabricated reason to accuse President Joe Biden of engaging in an insurrection, and then imagine that they invoked this pretextual reason to remove Biden from the 2024 ballot.
Ordinarily, the US Supreme Court is supposed to defer to a lower court’s factual findings when it reviews a state supreme court’s decision. So, if Florida’s courts are free to decide which candidates are disqualified because they engaged in insurrection, the US Supreme Court has limited authority to correct such a decision merely because it rests on made-up facts.
And there’s also a semi-famous case warning against treating the Insurrection Clause as a self-executing provision that can be enforced without a federal statute laying out how it should be enforced. In In re Griffin (1869), Chief Justice Salmon Chase wrote that the Constitution’s guarantee of “due process of law” — a guarantee, it is worth noting, that is also safeguarded by the 14th Amendment — is inconsistent with a system that “at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave.” (Griffin it should be noted, was not a Supreme Court decision. Although the case was decided by a sitting chief justice, justices in the mid-19th century frequently acted as ordinary trial or appellate judges.)
Trump wasn’t exactly denied a trial altogether before he was removed from Colorado’s ballot. But, as Justice Carlos Samour wrote in a dissenting opinion, the process Colorado’s courts used to determine that Trump engaged in an insurrection was unusually truncated. It lacked “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” And, as Justice Maria Berkenkotter wrote in her dissent, the Colorado courts relied on a process that “up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.”
In any event, the Colorado GOP takes its argument that the 14th Amendment is not self-executing too far, suggesting that Trump cannot be disqualified unless he is convicted in a federal court specifically of violating a criminal statute that uses the magic word “insurrection.” But they raise valid points against allowing each state to have the final word on who can run for president, and against allowing Trump to be removed based on the limited process he received in the Colorado system.
These concerns would be obviated, however, if the Supreme Court reverses the Colorado Supreme Court’s decision removing Trump from the ballot — but also states that Trump might still be declared ineligible if he is convicted in federal court for his attempts to overturn the 2020 election.
The GOP’s remaining arguments are extraordinarily weak
In addition to this one, reasonably persuasive argument for reversing the Colorado Supreme Court, the state GOP also makes two other arguments that the justices will hopefully have the good sense to ignore. First, they claim that the GOP has a “First Amendment associational right to choose its own political candidates,” so kicking one of the GOP’s preferred candidates off the ballot would violate the Constitution.
Notably, however, the Colorado GOP cites no case law that even arguably supports this argument. The Supreme Court said in Burdick v. Takushi (1992) that “limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable.” So it would be quite odd if the Supreme Court concluded that a state cannot have a law disqualifying candidates who are constitutionally ineligible for the office they seek.
The GOP’s final remaining argument, meanwhile, is the sort of over-lawyered argument that, in the words of attorney Adam Unikowsky, is unlikely to persuade “anyone unburdened by law school.”
Briefly, the Insurrection Clause itemizes a list of former officials who are constitutionally ineligible for office, and the GOP claims that Trump does not fit into any of these categories:
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.
The key words in this provision are “as an officer of the United States.” The Colorado GOP argues that the president does not count as such an officer, and therefore Trump is not disqualified from holding office again in the future.
The GOP roots this argument largely in other provisions of the Constitution, drafted nearly a century before the 14th Amendment, which seem to describe the president as separate from “officers of the United States.” One provision of Article II of the Constitution, for example, states that the president “shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” But the president obviously does not appoint himself. So, read in isolation, this passage does suggest that the president is not an “officer of the United States.”
But, as the Colorado Supreme Court held, these passages should not be read in isolation. And the Constitution as a whole suggests the far more intuitive conclusion that the highest-ranking official in the United States is, indeed, an officer of the United States. “The Constitution refers to the Presidency as an ‘Office’ twenty-five times,” the state supreme court notes. And the GOP’s preferred reading of the Constitution would lead to absurd results.
One provision of the Constitution, for example, states that Congress “can impose, as a consequence of impeachment, a ‘disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.’” But, if the presidency doesn’t count as such an office, that would mean that Congress may disqualify impeached officials from holding any office except for the most powerful office in the entire government.
Why on earth would anyone write a constitution with such a silly loophole?
Indeed, the GOP’s reading of the Constitution would lead to even more absurd results than this post-impeachment problem. The GOP does not contest, for example, that the Constitution disqualifies anyone who served as a senator, a member of the House of Representatives, a governor, a state lawmaker, or a cabinet official from holding office if they engage in insurrection. So, even under the GOP’s reading of the 14th Amendment, a former president who previously served in any of these other offices would be disqualified if they later engaged in insurrection.
The GOP’s argument, in other words, is that a former president who once served in some other elected or appointed office is ineligible to serve again if they engage in an insurrection — but an insurrectionist former president who has only served as president, such as Trump, remains eligible. No one would intentionally write a constitution to include such an arbitrary distinction.
Of course, Republican appointees enjoy a six-vote supermajority on the Supreme Court. So there is no guarantee that a majority of the justices won’t latch onto one of the GOP’s weaker arguments for keeping Trump on the ballot. But there’s no need for them to do so, even if they are determined to rule in favor of Trump, because the GOP raises an entirely plausible due process objection to the Colorado Supreme Court’s decision — albeit one that should only delay, and not eliminate, the need to determine whether Trump is eligible for office.