Legal scholars: Trump made “dangerous” gamble in bid for Supreme Court to keep him on ballot

Former President Donald Trump implored the Supreme Court to keep his name on Colorado's ballot, accusing his opponents of pursuing an "anti-democratic" legal case against him, in his last written filing before the court’s oral arguments this week. 

The brief highlights Trump's recent victories in the GOP primaries, suggesting that applying constitutional standards to a widely supported candidate would be misguided. It then goes on to make a comparison between the legal action against Trump and the actions of a "socialist dictatorship in Venezuela," which excluded the leading opposition candidate from the presidential ballot.

“Yet at a time when the United States is threatening sanctions against the socialist dictatorship in Venezuela for excluding the leading opposition candidate for president from the ballot, respondent Anderson asks this Court to impose that same anti-democratic measure at home,” Trump’s lawyers wrote.

The filing argues that to date, at least 60 state and federal courts throughout the country have refused to remove the former president from the ballot. The Colorado Supreme Court is the “lone outlier,” and this court should reverse and “protect the rights of the tens of millions of Americans who wish to vote for President Trump," his lawyers argued.

The Supreme Court is set to hear arguments Thursday on whether the former president’s actions on Jan. 6 constitutionally bar him from seeking a second term in the White House.

“This decision will define both its application and use in this election and in future elections in American history,” David Schultz, professor of political science at Hamline University, told Salon. “It will be one of the most consequential decisions in recent American history.”

The crux of Trump v. Anderson lies in the court's interpretation of Section 3 of the 14th Amendment, which prohibits certain elected officials, including those considered "officers of the United States," from holding future office if they have participated in insurrection. Trump contends that the term "officer" does not apply to presidents and argues that Congress must pass a law before Section 3 can be enforced.

The language of Section 3 “certainly sounds self-executing,” James Heilpern, practicing appellate attorney and a senior fellow at BYU Law School, told Salon. It states “unequivocally” that “no person shall . . . hold office” who previously served as an officer of the United States and took an oath to support the Constitution then engaged in insurrection or rebellion. 

The only authority it gives to Congress is the authority to remove this disqualification. But the disqualification is just there, he added. 

“To suggest that Section 3 has no teeth on its own, I think creates more problems than it solves,” Heilpern said. "The 22nd Amendment, for example, disqualifies anyone from running for President who has already been elected President twice before. Likewise, the Constitution states that only ‘natural-born citizens’ are eligible to be President. I'm unaware of any federal legislation that enforces either of these provisions. If the Supreme Court holds that Section 3's disqualification is not self-executing, then the same principle would extend to other qualifications for President and leave the States powerless to prevent Barack Obama or Arnold Schwarzenegger from appearing on the ballot.”

The president's theory runs into other problems too, he continued. The Supreme Court has held that the 13th Amendment is self-executing, and yet it has nearly identical language giving Congress authority to enforce the provisions as the Fourteenth Amendment. 

“Surely, President Trump is not suggesting that the slaves would not have been free in the absence of Congressional action over and above the super-majoritarian Amendment process,” Heilpern said. 

Trump may have a strong argument regarding Congress' role, Schultz pointed out, because it would allow the Supreme Court to overrule the lower courts without reaching a ruling on the merits of whether Trump engaged in insurrection. It can simply toss the matter to Congress.

The groups contesting Trump's eligibility for the ballot aim to steer the high court's attention toward the broader context. They argue that Trump's remarks at a rally outside the White House fueled the mob that stormed the Capitol. 

Trump's legal team is eager to emphasize potential "off-ramps" the court could employ to rule in his favor on narrower grounds, CNN reported. 

For the Supreme Court to affirm the Colorado Supreme Court's decision, those seeking to keep Trump have to win on about five different points, Heilpern explained. But for the Supreme Court to reverse the Colorado Supreme Court's decision, Trump has to win on just one – any one – of those points. 

Trump's lawyers are trying to “paint a roadmap for the justices” of ways they could write an opinion that would not require them to reach some of the “more explosive issues” in this case, such as whether Trump's conduct constituted "engaging" in insurrection, he continued. 

“They're trying to persuade the institutionalists on the Court – those justices that might be a little more concerned with preserving the Court's power and reputation – that there's a way to author a boring, neutral opinion that nonetheless keeps the Republican front-runner on the ballot,” Heilpern said. 

Trump’s team has raised other arguments too that are more on the merits, including federalism, arguing that the Colorado decision violates his First Amendment free speech rights and that he did not engage in insurrection, Schultz explained.

“The request to ask the court to rule on the merits and declare he did not engage in insurrection is dangerous,” Schultz said. “He is asking for the court to make a factual determination and it cannot do that. It is bound by the factual determination of the Colorado trial court. He needs to show as a matter of law that the lower courts were wrong.”

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The Supreme Court's decision in this case could have significant implications for future interpretations of the 14th Amendment and its application to elected officials.

If the justices were to write an opinion that said that Trump's conduct did not constitute "engaging" in insurrection, that means that future officeholders would know that they could at least do as much as Trump did in efforts to “thwart the peaceful transition of power” without fear of being disqualified from future office, Heilpern said. Trump's behavior would become “normalized.” 

However, if they hold that the president is not an "officer of the United States," they potentially “embolden” him should he win re-election in the fall, he added. The Supreme Court could also disqualify him. 

“They could affirm the Colorado Supreme Court's decision,” Heilpern said. “And if they did that, while there would be short-term protests and political agitation, in the long run, it could stabilize some of our broken political systems, demonstrate that the Constitution is the supreme law of the land, and strengthen the Supreme Court's reputation and place as a co-equal branch of government.”