On Trump’s Eligibility to Run for President: Who Decides?

The 14^th Amendment of the U.S. Constitution “bans anyone who took an oath to uphold the Constitution but who subsequently ‘engaged in insurrection or rebellion against,’ or gave ‘aid or comfort of the enemies’ of the Constitution from seeking any federal or state office.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

During the summer of 2023, lawyers opined on whether Don Trump is eligible to run for the U.S. presidency in 2024. It is one thing for lawyers on law-school faculties to decide whether Donald Trump, a former U.S. President as of 2023, is ineligible to run for president in 2024; it is quite another thing for the U.S. Supreme Court to make the determination; only the latter has governmental legitimacy that can legally be enforced, for the U.S. Constitution gives the federal supreme court the task of interpreting that constitution. In this case, the high court would be in the position of making decisions of fact—did Trump engage in an insurrection—and applying that decision to the 14^th Amendment. “The question of Donald Trump’s disqualification under the 14^th Amendment will be decided by the Supreme Court,” Michael Luttig, a conservative former federal appellate judge said in 2023.[2] Aside from the prediction, I contend that it should be.

The comment made by Luttig, who had actually been a judge, didn’t stop lawyers who teach at law schools from writing as if their own opinion were enough to render the former president ineligible to run for president. Just because someone ventures an opinion does not make it so. Even lawyers who specialize on writing in the field of constitutional law are, after all, merely private citizens like the rest of us. Of course, they, along with the rest of the American electorate, could decide indirectly through voting for or against Don Trump on the basis of determinations of whether he engaged in an insurrection. There are several problems with this method.

First, the voters would need to know how the framers used the word, insurrection, assuming an original intent hermeneutic, or else what the word means in its legal sense in 2023. The electorate would also have to “research”—and some potential voters put me off when I canvassed door to door by saying that they needed to research the candidates (yeah, right)—the Trumps various actions that could be considered to be insurrectionist: urging a crowd to pressure Congress on January 6, 2020 when it was counting the states’ respective ballots of electors, telling Vice President Pence that he had the authority to substitute slates of Trump electors in Arizona, Georgia, and other states, pressuring election officials in Georgia to “find” votes so Trump would win the state, and considering the use of the military on the capitol so Congress would use his slates of electors in states that he lost. Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential to the viability of a republic. They are also necessary for an electorate to apply constitutional vigor even to a candidate whom some voters like.

Secondly, letting the voters decide cannot keep Trump off any ballot prior to the election, not to mention prior to the Republican Party’s nomination process, because an election is the means by which voters would decide Trump’s fate. Former New Jersey governor Chris Kristy’s assertion, “The voters of our party are going to need to determine this question,” is neither competent nor fair to the Republic Party. An election before the election might be feasible, but then perhaps the first election would then de facto be the presidential election itself.

Deciding the matter by whatever means after the Republican Party’s convention would not be fair to the party. If election officials or a court later decide that Trump is ineligible, the party would suddenly be left, after its convention, without a nominee for president.[3] Because the U.S. Supreme Court “keeps its own schedule and is not bound by electoral deadlines, there exists the possibility that Trump could lock down enough delegates to win the Republican nomination—or even be officially nominated—only to be subsequently removed from the presidential ballot.”[4] Perhaps in such a case the Republican National Committee would be tasked with selecting the nominee, opening the door to the possibility of “back room” political deal-making and even bribes. That rather undemocratic consequence would be ironic if the people had been the deciders in a special election or referendum.

So, leaving the matter up to the voters is problematic; the matter of a nominee could ironically be decided by committee. That leaves us with either election officials acting independently of each other or all together, or the U.S. Supreme Court justices to decide. Just because some citizens claim that Trump is ineligible to run for office does not make it so. That almost all lawyers teaching constitutional law in the United States have only one—hence undergraduate—degree in law is all the more reason why their writings should not be taken as binding for election officials. Even if “the case is not even close,” as William Baude and Michael Paulsen wrote, it is not necessarily the case that, “All who are committed to the Constitution should take note and say so.”[5] Not only are articles in law reviews, whose editors are undergraduate law students, not objective analysis at least in constitutional law; such writings can be deemed political, and even instances of political activism claiming that readers should take action of a political sort.

But should election officials of local, state, or federal jurisdiction be the deciders? I contend that they should not. Firstly, if even just a few officials at the local or state level decide to exclude Don Trump, then the judgment in favor of Trump by other election officials would be impaired because he would not be on the ballot in every locale or state. It would be extra-constitutional (i.e., outside of the constitution) should all of the officials in the U.S. vote on whether to exclude him, for all of the officials, as a group, are not organized as a group constitutionally. Secondly, election officials do not necessarily have expertise on what exactly constitutes insurrection. Thirdly, they would inevitably be sued, whatever they decide, so the U.S. Supreme Court would be the final decider anyway.

An alternative way that the high court could wind up deciding on Trump’s eligibility would be deciding the inevitable appeal that would be made if Trump will have been found guilty of insurrection by a jury. It is significant that Trump had not been indicted on the charge of insurrection even though 91 charges were leveled against him as of August, 2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department, would have charged the former president with insurrection had evidence existed to support that particular charge. Unlike the lawyers who teach in law schools, Smith had a formal means—a grand jury and a court with a judge—to make the charge, and he did not. Smith also had access to the evidence, which lawyers in law schools did not have. So, it is odd that the lawyers who claimed that Trump had engaged in an insurrection did so knowing that Smith had decided not to level that charge. Even stranger would be such a lawyer presuming that one’s opinion, whether in an interview or argued in an article in a law school’s undergraduate publication, is sufficient for election officials to keep Trump off their respective ballots.

In short, it could be argued that because Trump has not even been charged with insurrection, he cannot be found to be ineligible for office based on insurrectionist activities. It could also be argued, however, that the inclusion of insurrection in the 14^th Amendment is a political rather than a judicial matter. Under this reading, Congress could pass a law—rather than using the word insurrection for January 6^th in an award given to three Capitol Hill police employees—declaring that Trump engaged in an insurrection, and the high court would decide the inevitable constitutional challenge in court. But unlike impeaching and removing a president from office, no constitutional language supports applying the political process of how a bill becomes law.

Of all the chatter by experts and non-experts alike, the fact that Jack Smith did not charge Don Trump with having engaged in an insurrection is most salient to me in this case. To be sure, the U.S. Supreme Court justices could find that if he is found guilty of any of the existing charges bearing on January 6^, 2020, pressuring Georgian officials to “find” votes, or instigating false slates of electors in a few states, that they constitute insurrectionist activities.  The “finding” of votes, such as probably happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption in American politics, however. Even so, the justices could find on their own that Trump is guilty of fomenting or agitating an insurrection. The justices would need a suit to be brought to the court, however.

The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.

U.S. Presidents Buckle at Constraints: The Case of Obama's Recess Appointments

A constitutional system of checks and balances is premised on the assumption that government officials will seek to get as much power as they can. Constraint itself becomes a dirty word. Admittedly, the desire to resist or ignore constraints may be in human nature itself, though people differ in how much self-discipline they will bring to the task of restraining themselves from walking through constraints as if they were Chinese walls made out of paper. A constitutional system that checks ambition with ambition must not assume that some of the more beloved elected representatives can be relied on to resist the temptation to go too far. I have in mind the case of the U.S. president being able appoint officials without the confirmation by the U.S. Senate.

The President cannot decide that the Senate is on recess in order to be able to make recess appointments without  needing confirmation. This was the ruling of the federal court of appeals in Washington, D.C. The case involved the appointment of three members of the National Labor Relations Board. A three-judge panel of the court ruled that the appointments “were constitutionally invalid” because the U.S. Senate was not in recess on January 4, 2012 when President Obama made the recess appointments. If the president were free “to decide when the Senate is in recess,” it “would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases,” the court opinion reads.[1] Of course, the Senate could also abuse its privilege by declaring itself in session when it is de facto in recess in order to prevent recess appointments. The balance in “checks and balances” implies that neither side is able to render the other impotent to act. In other words, neither side should try to game the constitutional system.
For its part, the White House viewed the ruling as applying only to the three NLRB appointments in the suit, rather than extending to Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB). That appointment too was made on January 4, 2012. Because the court ruled that the U.S. Senate was not in recess, it stands to reason that any recess appointment made by the president on January 4, 2012 was invalid. Even so, White House spokesman Jay Carney said that Obama’s appointment of Richard Cordray was not affected by the court’s decision. “The decision that was put forward today had to do with one case, one company, one court,” Carney said. “It has no bearing on Richard Cordray.” I contend that it did.
The ruling states that no recess appointment can be made by the president when the U.S. Senate is not in recess. Even if the Obama Administration disagreed with the ruling, to narrow it dogmatically to just three of the appointments made when the U.S. Senate was not on recess (as determined by the court) is nonsensical. Besides offending reason itself, the “reasoning” evinces a tendency then in the White House to evade the very notion of constraint. The same tendency could be discerned in the next president as well, suggesting that to protect the viability of the constitution it is necessary for Congress to keep a vigilant eye on the executive arm of the government. In other words, resisting constraint itself is likely in human nature itself and thus must be closely watched in cases in which a lot of power is involved. 

 1. Tom Curry, “White House Sees No Impact of Court Ruling on Finance Protection Agency,” NBC News, January 25, 2013.

Egyptian Court Overreached in Declaring a Legislature to be Unconstitutional

In 1803, the U.S. Supreme Court decided Madison v. Marbury, which established the authority of the court to declare a law to be unconstitutional, and thus invalid. A basic principle underlying this authority is that a constitution is on a level superior to a statute. An entity established in a constitution to interpret it can thus invalidate a law passed by another body established in the constitution. Invalidating that other body itself would be an entirely different matter, as it would involve one constitutional body dissolving another of equivalent grounding.

Accordingly, the constitutional court in Egypt overreached on June 14, 2012 in declaring the parliament dissolved. To treat a legislative body as akin to a law established by such a body evinces a category mistake with respect to level. Whereas a law is subject to decisions by governmental bodies, the latter themselves are subject to constitutional amendment rather than governmental action (including that of the judicial branch of government). General speaking, basic law such that creates governmental bodies (whether in constitutional language or not) trumps that which is created by those bodies. Put another way, a court must take the existence of the extant government institutions as a given.

By loose analogy, the Egyptian court was treating a sibling as if it were an offspring. Whereas brothers and sisters of the same generation are “on the same level,” their kids are on another level. One does not treat one’s brother and nephew similarly. So too, sibling governmental institutions should not treat each other as if they were that which they produce.

The judicial breach in Egypt was particularly suspect because the justices had been appointed by Mubarak, whose last prime minister was running for president against the candidate of the opposition party, which dominated the parliament as a result of a democratic election. Fittingly, that party disputed the court’s ruling and its authority to dissolve the legislature. Saad el Katatni, the Parliament’s majority leader, accused the military-led government of orchestrating the ruling. Although it was politically suspect and thus not credibly judicial, my point is that for the justices even to have thought that a court could dissolve another governmental body points to a basic ignorance concerning the difference between a constitution, governmental institutions, and laws.

A constitution (or basic law) creates and thus is superior to governmental bodies, which in turn make, execute or interpret (and thus are superior to) laws. That this basic hierarchy was somehow lost on the Egyptian justices suggests a basic incompetence that nullifies the court’s decision as that of a constitutional court. In other words, the decision can be interpreted as a coup rather than a judicial ruling merely on account of the ignorance. The error is that glaring, and yet somehow the jurists presented the ruling as legitimate nonetheless.

Faced with the real likelihood that the nescient democracy was being snuffed out by the partisan power-play made under judicial auspices, Egyptian citizens of all stripes had to decide whether to put a democratic Egypt above even partisan advantage. I suppose the matter of democracy in an autocratic context depends ultimately on how badly the body politic wants political self-determination, for the forces that are dominant in the status quo do not just go softly into the night. Rather, they have to be shown the door more than once, until they finally get the message.

Source:

David Kirkpatrick, “Forces Surround Parliament in Egypt,Escalating Tensions,” The New York Times, June 15, 2012. 

A Lawyer Comes Up Short on Obama on the U.S. Supreme Court

As president, Thomas Jefferson campaigned against the U.S. Supreme Court in the pivotal 1800 election after the court let the Alien and Sedition Acts stand. The law criminalized criticizing government officials of the U.S. Government. Lincoln announced during his 1860 campaign that he would not enforce the court’s Dred Scott decision upholding slavery in U.S. territories. In saying that invalidating the Affordable Healthcare Act would represent an unprecedented act of judicial activism, Obama was not going nearly that far. In other words, he was not saying he would ignore the decision. Nor did Obama announce anything like Roosevelt’s unsuccessful court-packing scheme.

Even so, a lawyer who teaches law at Samford University in Alabama opined, “It’s virtually unprecedented for a president to criticize the institutional powers of the Supreme Court. I don’t know of any other instance where a president has publically questioned the legitimacy of judicial review.”[1] Apparently the lawyer had not heard of Lincoln’s announcement or Roosevelt’s court-packing.

This example of commentary by the lawyer illustrates why law schools hiring lawyers to teach law classes is fundamentally different than hiring legal scholars to be law professors. A lawyer can become an expert on the technical nuances of a statute or judicial opinion, as well as how to argue such points in a court of law. This is not the same as having scholarly expertise on jurisprudence, which includes constitutional philosophy and history. The difference can be expressed as that which exists between examining individual trees and grasping the contours of the forest. Ironically, as a graduate student in law progresses in the LLM and JSD degrees, the seminars become more specific in coverage (the dissertation of the doctoral candidate in a JSD program being incredibly specific), the level of abstraction increases so a wider perspective is proffered though the narrowing disciplinary focus.

Were law school deans in the U.S. republics to hire scholars as professors rather than lawyers as instructors, the students would benefit immensely from the standpoint of learning the knowledge of law, rather than simply how to practice it.

1. Richard Wolf, “Other Presidents Took on High Court before Obama,” USA Today, April 6, 2012. 

Wickard vs. Filburn: Federalism vs. Congress

If you are wondering how the Congress got away with taking over so much from the state legislatures, you need look no further than Wickard v. Filburn, on which the U.S. Supreme Court unanimously decided that the interstate commerce clause can reach all the way to penalize a farmer for growing his own wheat.

Filburn and his wheat.  (Mary Lou Spurgeon  NYT)

The complete essay is at Essays on Two Federal Empires.

Pardons in Mississippi: On the Role of the Supreme Court

In a 6-to-3 decision, the Mississippi Supreme Court ruled in 2012 that pardon procedures lay outside of its constitutional authority—that to interfere even in cases where those procedures were flouted would violate the separation of powers. Section 124 of Mississippi’s Constitution “gives pardon power exclusively to the governor, but also requires applicants to have their petitions for pardon ‘published for 30 days, in some newspaper in the county where the crime was committed.’”[1] This is constitutional language, and yet the Supreme Court refused to determine whether Haley Barbour had acted unconstitutionally in all but 22 of the 200 pardons he had granted in his last days in office. In other words, the Court’s function in interpreting the constitution is at odds with the principle wherein the three branches of the Mississippi government are separate—none being directed by any of the other two.

In his majority decision, Justice Jess Dickinson wrote, “While this court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline—as we have so many other courts before us—to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justifiable violation of a personal right.”[2] In a dissent, Chief Justice William Waller argued that the Constitution puts limits on the governor’s pardon power, and the court is obliged to make sure those limits are not crossed.  As those limits are set in the constitution rather than by statute, the Supreme Court as interpreter of the Constitution is justified—indeed even obligated—to determine whether an executive order violates the language and is thus unconstitutional.

If judicial review were subject to the separation of powers doctrine, then the Supreme Court of Mississippi could only assess the constitutionality of the judiciary’s decisions and protect the rights of individuals from governmental action—though even here such protection could be interpreted as being at the expense of the legislative or executive branch and thus violating the separation of power between the three branches. Furthermore, assuming that the chief executive of Mississippi might somehow police the constitutional limitations on himself puts him in a conflict of interest with respect to himself. A conflict of interest is also in play, by the way, in Haley Barbour pardoning prisoners who worked at the governor’s mansion.

To be sure, a conflict of interest also applies when a Court applies constitutional interpretation to itself. It would be advisable, therefore, for Mississippi to create a constitutional court whose role is only to interpret the Constitution. Such a court could thus apply constitutional scrutiny to other courts in Mississippi without so much of a conflict of interest (there still being some, the Constitutional Court being in the same branch).

In short, the referee should not do anything else with respect to the game, and none of the game rules should be off limits simply because it applies to one of the other players. To rely on the legislature to keep itself within constitutional bounds or likewise in the case of a joint figurehead and chief executive of a government does not take seriously the function of a constitution to keep a government within certain limits of power. To expect power to police itself is sheer folly.

1. Campbell Robertson, “Highest Court in Mississippi Upholds 9 Pardons,” The New York Times, March 9, 2012. 
2. Ibid.