If the Colorado Supreme Court is right that the former president is constitutionally ineligible to run for president, fundamental values are in severe tension.
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Legal challenges similar to the one former President Donald J. Trump faces in Colorado are pending in at least 16 additional states.
The Colorado Supreme Court’s ruling that Donald J. Trump is constitutionally ineligible to run for president again 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.
Mr. Trump’s status as the Republican front-runner for the presidential nomination, despite his role in the events that culminated in the attack on the Capitol on Jan. 6, 2021, has created severe tensions between those two principles. If the court’s legal reasoning is correct, obeying the rule of law produces an antidemocratic result.
That constitutional and political dilemma is likely to land before the U.S. Supreme Court. And while Mr. Trump’s name would stay on the primary ballot as the justices weighed the matter, their decision would have consequences far beyond his opportunity to win Colorado’s 10 Electoral College votes.
For one, similar legal challenges to Mr. Trump’s eligibility are pending in at least 16 additional states. Moreover, the precedent the case will set could open or shut the door to the risk that partisans will routinely turn to state courts to try to keep major federal candidates off the ballot.
Supreme Court justices have life tenure in the hope that their work will be independent of political influence, and, under the principle of the rule of law, it would be illegitimate for them to torque their interpretation of the Constitution with an eye toward political consequences. Under the rule of law, the Constitution and federal statutes apply equally to everybody, and no one’s power, wealth, political influence or other special status puts him or her above the law.
But under the principle of democracy, the government’s legitimacy stems from the fact that voters decided whom to put in charge. The prospect of unelected judges denying voters the opportunity to make their own decision about Mr. Trump’s political future has given pause even to some of his critics who fervently hope Americans will reject him at the ballot box.
Stephen I. Vladeck, a law professor at the University of Texas at Austin, said that even if one thinks that Mr. Trump’s actions rendered him unfit for office in line with the 14th Amendment, there are other — and less alarmingly novel — systems that could have addressed that problem before it reached the courts. These would have freed the Republican Party to have a starkly different primary contest, he said.
“The problem is that we’re just not set up for this — we’ve run through the safety nets,” Mr. Vladeck said. “We’ve been spared from this problem in the few prior episodes where it could have arisen by different sets of constraints. And so now we’re in this position because those backstops have failed.”
Had nine more Republican senators voted to convict Mr. Trump at his Jan. 6 impeachment trial, he would be ineligible to hold future office anyway, said Mr. Vladeck, who wrote a column about the complications of the Colorado court’s ruling titled “The Law and High Politics of Disqualifying President Trump.” And if more Republican voters were repelled by Mr. Trump’s attempt to secure an unelected second term, his political career would be over as a practical matter.
The legal dispute turns on a clause of the 14th Amendment, which was added to the Constitution after the Civil War. Its third section says that people who betrayed their government oaths by engaging in an insurrection are ineligible to hold office. Citing Mr. Trump’s actions surrounding the Jan. 6. riot, the Colorado Supreme Court ruled on Tuesday that he was an oath-breaking insurrectionist whose name could not lawfully appear on the ballot.
ImageColorado’s Supreme Court ruled on Tuesday that the former president was disqualified from holding office again.Credit…Stephen Speranza for The New York Times
“If the language is clear and unambiguous, then we enforce it as written,” a four-justice majority wrote.
But even if a majority of justices on the U.S. Supreme Court privately agree that the disqualification clause, by its plain text, seems clearly to bar Mr. Trump from returning to government power, it will not be surprising if they hesitate at the prospect of issuing a ruling affirming the Colorado court’s decision.
If the justices want to overturn the Colorado ruling, they will have numerous potential offramps. Mr. Trump’s lawyers will have technical arguments, like whether the clause in question has legal force by itself or whether Congress would first need to enact a statute for it take effect. His lawyers will also have substantive arguments, like denying that the mob violence of Jan. 6 rose to the level of an “insurrection” in the constitutional sense.
The dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election, which overruled Florida’s Supreme Court and ensured that George W. Bush would maintain his narrow lead over Al Gore in that state to win its Electoral College votes and become the next president.
A similarity is the risk of the appearance of partisanship. In the Bush v. Gore case, the five most conservative justices ensured that the Republican candidate would prevail. Today, the U.S. Supreme Court is controlled by a supermajority of six Republican appointees, so a decision to overturn the Colorado ruling and help Mr. Trump could also carry partisan overtones.
A difference is the implications for democracy. The Florida Supreme Court in 2000 was not itself deciding the fate of the candidates but trying to allow the completion of a recount that would have clarified the will of voters. If the Supreme Court now overturns the Colorado ruling, it will be leaning in the direction of letting voters decide about Mr. Trump; upholding the state court’s ruling would be the opposite.
There has always been inherent tension in the American governing system because the Constitution sets certain limits on democracy. For one, most decisions are made by elected representatives, not directly by plebiscites and referendums.
ImageThe current dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election.Credit…Mark Wilson/Newsmakers, via Getty Images
The structures of the Senate and the Electoral College system undercut the democratic principle that everyone has an equal say by giving disproportionate power to voters in sparsely populated states — including sometimes enabling the loser of the national popular vote, like Mr. Bush in 2000 and Mr. Trump in 2016, to nevertheless become president.
Not everyone who lives in the United States is allowed to vote for government leaders. Noncitizen permanent residents, people under 18 and convicted felons in some states may not participate in elections — all of which conflicts with the principle that the legitimacy of the government stems from the consent of the governed about who will be in charge.
Other requirements restrict who is eligible to hold office. The 22nd Amendment bars anyone from being elected president a third time, even if voters want to keep that person in place. It was added after President Franklin D. Roosevelt violated the constitutional norm of retiring after two terms, which President George Washington had established.
The Constitution sets age limits: One must be at least 25 years old to be a member of the House, 30 to be a senator and 35 to be president, even if voters would prefer someone who happens to be younger.
And the Constitution dictates that to be eligible to be president, a person must be a natural-born citizen. The antidemocratic nature of that rule drew some attention when the actor Arnold Schwarzenegger, a naturalized citizen who was born in Austria, was elected governor of California. He could never run for president, no matter how popular he was with voters.
The issue of citizenship at birth has also been the subject of political attention. When Senator John McCain ran as the Republican presidential nominee in 2008, there were questions at the fringes about whether he was eligible because he had been born in the Panama Canal Zone, although to American parents.
Mr. Trump’s rise to national political prominence was fueled by his lie that President Barack Obama, who was born in Hawaii, might have been born in Kenya. And in the 2016 Republican primary, Mr. Trump attacked a rival, Senator Ted Cruz of Texas, over his birth in Canada, similarly seeking to raise doubts about his eligibility for the presidency.
But, despite Mr. Trump’s own history of questioning the eligibility of his political adversaries for president, his legal disqualification would risk undermining democratic legitimacy in a society where extreme polarization and partisanship are already raw.
The moment calls to mind an ambiguous legal phrase that is often invoked as a rallying cry for courageously following the law but, as Mr. Vladeck pointed out, also carries a grim warning: “Let justice be done though the heavens fall.”
Charlie Savage writes about national security and legal policy. He has been a journalist for more than two decades. More about Charlie Savage
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Source: nytimes.com
