What the Supreme Court Should Not Do in Trump’s Disqualification Case

Many Americans are convinced that the disqualification of Donald Trump from Colorado’s primary ballot is a terrible idea and want the Supreme Court — which agreed on Friday to take up this question — to find a way to let the former president run. Mr. Trump’s supporters are eager to vote for him and argue that his exclusion from the election would be anti-democratic. Some of Mr. Trump’s opponents are just as eager to see him thrown in prison but believe that throwing him off the ballot would set a more dangerous precedent.

What unites these two sides is their unwillingness to ask Congress to exempt Mr. Trump from disqualification or admit that they want him to receive special treatment.

Unlike other constitutional provisions, Section 3 of the 14th Amendment draws a sharp line between law and politics. The first part of Section 3 is a legal command about who cannot hold office that focuses primarily on individual conduct and does not require congressional action. But the second part says that “Congress may by a vote of two-thirds of each House remove” a disqualification for any reason.

The framers of the 14th Amendment deliberately gave Congress — not the president or the Supreme Court — the power to grant a Section 3 waiver on public policy grounds. Congress’s amnesty authority for disqualification from office is the equivalent of executive clemency in criminal cases, which can be exercised in the interests of justice or for the common good.

In reviewing Mr. Trump’s appeal, the Supreme Court should fulfill its duty to “say what the law is” and resist calls to judge whether applying the 14th Amendment would be good or bad for the country. If the court concludes that the law, fairly read, disqualifies Mr. Trump from returning to office, then the Colorado Supreme Court’s ruling should be affirmed. Section 3 implicitly bars the court from giving an insurrectionist official an exemption for pragmatic reasons.

Congress is fully capable of exercising its discretion to grant Mr. Trump amnesty and — unlike the court — can be held democratically accountable by voters either for giving him a Section 3 waiver or for refusing to act.

After the Civil War, Congress often did just that: It exercised its authority to remove disqualifications from former Confederates and, in difficult cases, carefully weighed whether the national interest justified an exemption. Sometimes those debates were about whether giving a particularly notorious person amnesty would encourage local leaders to support federal policies in the South and reduce violence. Sometimes the debates concerned larger themes, like whether a second chance for insurrectionists should be coupled with stronger civil rights protections for Black Americans. The amnesty issue played a significant role in the 1872 presidential campaign, with Democrats running on a platform of amnesty for all former Confederates and Republicans insisting that Congress should continue to exclude the worst offenders.

Amnesty debates extended even into the 1970s, when Congress finally granted Section 3 relief to Robert E. Lee and Jefferson Davis, in a symbolic gesture of national unity in the wake of the Vietnam War.

Most of the commentary on the Colorado Supreme Court’s decision is about the consequences of Mr. Trump’s disqualification and not about his conduct or the basic legal issues. For example, none of the Colorado Supreme Court justices disagreed with the trial court’s conclusion that Mr. Trump engaged in insurrection against the Constitution. And none of them agreed with Mr. Trump’s claim that the presidency is exempt from Section 3.

Many critics of the Colorado ruling also do not dispute these legal conclusions. Instead, they say that Section 3 should not be applied to Mr. Trump anyway, because his exclusion from the ballot might lead to more violence, undermine faith in our institutions or lead to a vicious cycle of partisan disqualifications.

But these concerns are precisely the kinds of political arguments that Congress — and only Congress — can consider under its waiver authority.

A recent essay by Eric Segall, a professor at Georgia State University College of Law, connects the dots and reasons that Congress should give Mr. Trump amnesty for his role in the violence at the Capitol on Jan. 6, 2021. Mr. Segall urges Democrats to join Republicans in passing this constitutional legislation, as there is no other way to obtain the required two-thirds vote in each house.

But despite the fact that Congress can grant Mr. Trump an exemption at any time, Mr. Segall stands alone in pursuing the path that Section 3 lays out. No amnesty legislation is pending in Congress, and I haven’t seen any other skeptic of Mr. Trump’s disqualification support giving him a formal congressional waiver.

Amnesty is absent from the Section 3 conversation because it would require Mr. Trump’s friends and foes to face some uncomfortable truths. Republicans would have to admit that their leader committed a grave constitutional wrong and can serve in office again only if Congress lets him out of the penalty box. Democrats would have to admit that they want the former president to get a special privilege from the law and would need to vote for that gift.

Both sides are hoping that the Supreme Court will rescue them from going to Congress by riding roughshod over Section 3’s text, structure and history and using any legal excuse to call upon its own “wisdom” or “common sense” to give Mr. Trump a pass.

But Congress is the exclusive judge of amnesty. Consider an analogy: There may be excellent reasons to give a convicted criminal a federal pardon. But the Supreme Court cannot pardon someone; only the president can. By considering arguments grounded in consequences to decide whether Section 3 disqualifies Mr. Trump, the court would be violating the language of the provision and the principle of separation of powers.

Sadly, there is a long tradition of denying the plain meaning of the 14th Amendment because people believe that the results would be unwise. Lawyers and commentators distinguished in their day long ago persuaded the Supreme Court that the Privileges or Immunities Clause in Section 1 of the amendment must mean nothing because to say otherwise “radically changes the whole theory of the relations of the state and federal governments to each other.”

Leading lawyers and commentators also persuaded the Supreme Court that Section 5 of the amendment must not give Congress the power to enact broad civil rights laws because to say otherwise would be “absurd.” And they talked the court into holding that the Equal Protection Clause must permit racial segregation because to say otherwise would upset the “established usages, customs and traditions of the people.”

They were wrong then. And they are wrong now.

Perhaps Donald Trump deserves Section 3 amnesty. Perhaps not. But the answer to this question must come from our elected representatives in Congress. They were attacked on Jan. 6. Only they have the right to forgive.

Gerard N. Magliocca is a professor at Indiana University Robert H. McKinney School of Law and the author of “American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.” Mr. Magliocca was an expert witness in the Colorado trial on Donald Trump’s disqualification.

Source photographs by James Pintar, BryanE, GlobalP and shunli zhao/Getty Images

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