For the first time in American history, a former president, Donald J. Trump, stands accused of treasonous acts against the United States and its citizens. Currently entangled in litigation with U.S. prosecutors over these allegations, President Trump has made the unprecedented move of seeking reelection, marking the first instance of a former president vying for office after losing an election. However, amidst the backdrop of felony indictments for crimes against the nation, numerous states took measures to bar President Trump from appearing on the ballot despite his strong prospects of securing the Republican nomination. This precipitated a constitutional and federalism debate regarding the enforcement of the Disqualification Clause of the Fourteenth Amendment against a federal nominee. The Supreme Court expedited the case and swiftly ruled before the election, declaring that states lack the power to determine presidential ballot eligibility.[i] Yet, in its haste, has the Court overstepped its authority, failing to demonstrate judicial restraint?

This case represents a novel instance, known as a “case of first impression,” wherein the issues at hand have not previously undergone examination or adjudication by the Supreme Court. To grasp the constitutional conundrum and the interpretative firestorm it has engendered, one must delve into both the literal interpretation of the language within the disqualification clause and its historical context. The pertinent provision, Section 3 of the Fourteenth Amendment, commonly referred to as the “disqualification clause,” explicitly states:

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.[ii]

This provision was ratified in the aftermath of the Civil War and directly addresses individuals involved in rebellion or insurrection against the United States. While the 14th Amendment does address disqualification from holding public office for those who engaged in rebellion against the United States, it doesn’t explicitly name Confederates. Instead, it targets individuals who participated in rebellion or provided aid to enemies of the United States during the Civil War.[iii] It is worth noting that there is not a single, overarching disqualification clause against federal officials in the U.S. Constitution.

The initial enforcement of the disqualification statute occurred in the late 1860s and 1870s, aimed at preventing several public officials with ties to the Confederacy from assuming office. Notable individuals affected at the time included a county sheriff, U.S. Congressmen, and a local postmaster. More recently, in 2022, a county commissioner in New Mexico was ousted under the disqualification clause due to his participation in the January 6^th riots triggered by a civil suit filed by private citizens.[iv]

Although President Trump has not been convicted of treason, insurrection, or other related crimes, the disqualification clause does not necessitate a conviction. Historically, disqualifications have occurred without a criminal conviction; demonstrating affiliation with or close ties to the Confederacy has sufficed. For instance, in 1919, Congress declined to seat U.S. Representative Victor L. Berger after he was convicted of disloyalty and supporting the enemy under the Espionage Act.

Over time, Congress has added additional statutory provisions related to the disqualification from holding a federal office, such as 18 U.S. Code § 2383, which criminalizes insurrections and prohibits anyone convicted under the statute from federal office.[v] Although these laws pertain to offenses such as bribery, treason, or other high crimes and misdemeanors, disqualification follows a conviction in these specific cases.  While impeachment proceedings can be initiated without a judicial conviction, given that President Trump is no longer in office, impeachment proceedings are not viable.

Following a historical analysis and enforcement of Section 3 of the Fourteenth Amendment, the Supreme Court ruled that states may enforce Section 3 only concerning individuals seeking state office; they lack the authority to enforce it regarding federal offices. While briefly considering the possibility of states enforcing Section 3 for federal offices through the Elections and Electors Clause. However, the Court swiftly dismissed this option, asserting a future attempt would likely be unconstitutional. This decisively resolves any potential future litigation or issues regarding the state’s discretion in determining who may appear on the ballot, regardless of conviction status.

Thus, in ruling, the Supreme Court ruled on issues, not before it. Justice Sotomayor quoting Chief Justice Roberts in Dobbs v. Jackson, “[i]f it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”[vi] While concurring with the judgment of the state’s inability to enforce section 3 on federal offices, Justice Sotomayor argued that the Court’s ruling extended beyond established legal principles by addressing non-existent issues. In doing this, the Court constrained how a person can be removed from the ballot, in holding that the legislature under Section 5 of the Fourteenth Amendment, must enact legislation to remove a person from the ballot. However, by adhering to the plain meaning of Section 3, the Court ruled in favor of President Trump. By adhering to the plain meaning of Section 5, it cannot be argued that it mandates legislative enactment, as it explicitly states, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”[vii]

Justice Sotomayor challenges the majority’s stance by examining Section 3 through its plain meaning. Firstly, she asserts that Section 3 simply pertains to insurrectionists without indicating any imperative requirement for legislative action under Section 5 to enforce the provision. She argues that rather than necessitating a legislative act, Section 3 functions in the opposite manner by allowing two-thirds of each house to remove a disability if one is deemed an insurrectionist. This raises the question of why the Constitution would mandate a congressional supermajority for the removal of a disqualification when a majority could effectively negate the operation of Section 3.

At the core of the constitutional conundrum lies a delicate balance between conflicting principles. While the Constitution furnishes mechanisms for holding public officials accountable. The interpretation of the disqualification clause elicits fundamental inquiries regarding the extent of political disqualification and its alignment with democratic principles and due process. Therefore, the recent Supreme Court ruling may have inadvertently brought forth additional constitutional challenges for the future, as it prescribed legislative action without this specific issue being at hand.

[i] See Trump v. Anderson, No. 23-719, 601 U.S. __ (2024) (overruling the Colorado Supreme Court and ruling states cannot enforce Section 3 of the Fourteenth Amendment against Federal Offices).

[ii]  U.S. Const. amend. XIV, § 3 (provision cited to prevent confederates or those with close ties to the confederacy from taking state public offices).

[iii] See David Roos, The Post-Civil War Origins of the 14th Amendment’s Disqualification Clause, ᕼɪsᴛ., https://www.history.com/news/14th-amendment-section-three-disqualification-clause-confederates (Jan. 18, 2024) (explaining the origins of the 14^th Amendment’s Disqualification Clause and its application in America’s history).

[iv] See Melissa Quinn, New Mexico Judge Bars “Cowboys for Trump” Founder from Office over Participation in Jan. 6 Assault, CBS News (Sep. 6, 2022), https://www.cbsnews.com/news/couy-griffin-january-6-new-mexico-judge-14th-amendment/

[v]  See 18 U.S.C. § 2383 (“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”).

[vi] See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 348 (2022) (“But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”).

[vii] U.S. Const. amend. XIV, § 5 (enabling Congress to enact further legislation to enforce the Fourteenth Amendment).