Trump’s Disqualification: A Primer

https://www.cato.org/blog/trumps-disqualification-primer

Robert A. Levy

Colorado is attempting to disqualify Donald Trump from running for president by excluding him from the state’s 2024 ballot. That idea was initially advanced in an upcoming law review article by two conservative law professors, and then endorsed in a 4‑to‑3 decision by the Colorado Supreme Court. On December 27, the Colorado Republican Party asked the U.S. Supreme Court to intervene. The Supremes haven’t yet accepted the case; but most legal experts agree that they should and soon will. 

At issue is Section 3 of the Fourteenth Amendment—ratified after the Civil War to stop former confederate chiefs from holding US office. It says in relevant part: “No person shall … hold any office … who, having previously [served] … as an officer of the United States, shall have engaged in insurrection.” That text has raised a number of difficult questions. 

#1: Who has standing to file suit? A Florida court said no standing for voters, but the Colorado court disagreed. #2: Does the US Constitution authorize states to define “engaging in insurrection?” If so, what are the limits? The state can’t just conjure up any definition. #3: Has the state designated a specific individual who can remove candidates from the ballot? Who, and by what process? A Michigan appellate court held that the secretary of state did not have that authority. #4: Does disqualification relate only to the general election, or also to the primaries? The Minnesota Supreme Court ruled that primary ballots are up to state party committees; and a decision on the general election was premature. #5: A few experts have even argued that Section 3 bars the president from holding office, but not running for office. Yet some states will not allow ineligible candidates to appear on the ballot. 

Those are all tough questions, which the US Supreme Court—with three Trump appointees—will have to resolve.

I suspect that the court’s decision will rest on the three most fundamental disputes: First, did Trump engage in insurrection? Special counsel Jack Smith has alleged five infractions: (1) attempts to set aside valid election results with false claims of voter fraud; (2) efforts to have Mike Pence unconstitutionally refuse to count certified votes; (3) imploring Congress to reject lawful votes; (4) incitement of a mob that would forcibly prevent vote‐​counting; and (5) deliberate inaction during the January 6 attack, despite having the duty and capacity to intervene.

The second key dispute is whether the Fourteenth Amendment’s use of the term “Officer of the United States” applies to Trump. A couple of prominent legal scholars have insisted that only appointed officers, not elected officials are covered. In fact, the trial court in Colorado refused to disqualify Trump for that reason; but the state Supreme Court disagreed. 

The term “Office of President” is used a half‐​dozen times in the Constitution. My sense is that the holder of the office must be an officer. Was President Nixon not an officer because he was elected, while his replacement, President Ford, was an officer because he was appointed? Was Vice President Rockefeller an appointed officer while his elected successor, Walter Mondale, was not an officer? 

Even more persuasive: If a president is impeached and convicted for giving aid and comfort to our enemies, the Constitution (Article I, Section 3) says he can be disqualified from holding office. Is it logical that he cannot be disqualified under Section 3 of the Fourteenth Amendment for the very same offense a day after he leaves office? I doubt it.

Finally, the third key dispute. The US Constitution is not a legal code; it’s a set of broad principles that implement a framework for governance. That’s why many constitutional provisions first must be fleshed out by Congress, in the form of enabling legislation. In this instance, Section 3 of the Fourteenth Amendment has been “enabled” by a criminal statute that sets out punishment—including disqualification from office—for rebellion or insurrection. [fn 1] Critics of the Colorado decision point out that Trump was never charged under that criminal statute. Nor was he convicted for insurrection during his impeachment trial.

US Supreme Court justices, 2023

True enough. But technically, Section 3 doesn’t mandate a criminal conviction; and it doesn’t require proof beyond reasonable doubt. [fn 2] Moreover, even if Trump was not convicted by the Senate, he was charged with insurrection by the House, 232‐​to‐​197; and the Senate voted to convict 57-to-43—but short of the 2/3 majority required for a guilty verdict. 

Nevertheless, my bet is that Chief Justice Roberts will be concerned about political repercussions if Trump is disqualified; and even the liberal justices will lean toward allowing voters to decide whether Trump is fit to be president—especially with no criminal conviction and considerable uncertainty regarding a non‐​criminal application of Section 3. Meanwhile, the Colorado decision has been stayed, and Trump can remain on the ballot while lawsuits are pending in more than 15 states. 

We await a Supreme Court resolution that will establish nationwide uniformity.

______________

[fn 1] 18 U.S. §2383. “Rebellion or insurrection: Whoever incites …, assists, or engages in any rebellion or insurrection against … the United States, or gives aid or comfort thereto, shall be fined … or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

[fn 2] Further: Under Section 3, Trump’s conduct need not meet the criminal standard of Brandenburg v. Ohio (“inciting or producing imminent lawless action and … likely to incite or produce such action”). Also, Section 3 need not recognize a mistake‐​of‐​insurrection defense. That is, intentional acts that amount to engaging in insurrection might be covered by Section 3, even if the actor wrongly believes no insurrection would or did occur. And claims that Trump is being denied due process would be applicable under the Fifth Amendment only if he were deprived of life, liberty, or property in a criminal proceeding.

Is the Debt Ceiling Unconstitutional? What about Default?

https://www.cato.org/blog/debt-ceiling-unconstitutional-what-about-default

Robert A. Levy

1. Describe the current impasse regarding the debt ceiling.

Treasury Secretary Janet Yellen warns that the federal government may no longer be able to meet its obligations if the debt ceiling is not raised by June 1. The result: default, with financial chaos to follow. Despite that stark warning, the debate over spending cuts continues. Democrats want a stand‐​alone “clean” vote on raising the ceiling. Republicans want to use the debt ceiling as leverage to force spending reductions. Political compromise remains elusive.

2. What do legal experts say about default?

Enter a handful of imaginative lawyers who promise to save us from economic ruination – not by spending less or taxing more, but by applying the Public Debt Clause in section four of the 14th Amendment. Essentially, they claim the Constitution forbids default and, consequently, a debt ceiling that triggers default is itself unconstitutional.

3. What does the Public Debt Clause of the 14th Amendment say?

The Public Debt Clause says “The validity of the public debt of the United States, authorized by law, … shall not be questioned.” That 1868 provision was intended primarily to prevent repudiation of Civil War debts. But the Supreme Court in Perry v. United States (1935) held that all federal debt is covered: The constitutional text applies “to the government bonds in question, and to others duly authorized by the Congress.” Still, that leaves several unanswered questions: First, what constitutes “public debt … authorized by law”? Second, is default comparable to repudiation in its effect on the debt’s “validity”? Third, even if default is unconstitutional, does that mean a debt ceiling is also unconstitutional?

4. What constitutes “public debt authorized by law”?

Perry plainly states that authorized and existing public debt must be paid. But proponents of the debt ceiling argue that Perry is irrelevant because the ceiling refers to new obligations that haven’t yet been authorized or issued. The counter‐​argument, to which I subscribe, is that Congress’s appropriation of funds for subsequent expenditure is equivalent to authorizing debt that would finance the expenditure. In other words, Congress has implicitly authorized the executive branch to borrow; and a statutory ceiling on that borrowing – even though signed by the executive – cannot be harmonized with the spending directive.

5. Would default be the same as repudiation in questioning the validity of our debt?

Debt ceiling advocates assert that Perry involves repudiation, which is more draconian than merely defaulting. Repudiation is a declaration that the money is not owed. A default, by contrast, declares inability to pay, which may even be accompanied by an acknowledgment that the debt remains valid. As long as the debt is not formally repudiated, so the argument goes, default does not automatically render one’s debt invalid. Once again, I subscribe to the counter‐​argument: If a friend refused to repay my loan when due, while assuring me that he would get around to it at an indefinite future date, I would be hard‐​pressed to intuit that his default – although not a repudiation – left me with a debt of unquestioned validity. As the Supreme Court said in Perry, “[T]he expression ‘the validity of the public debt’ [embraces] whatever concerns the integrity of the public obligations.”

6. What about the constitutionality of excessive spending, which can also affect the integrity of our debt?

A few devil’s advocates have argued that section 4 of the 14th Amendment might also mandate higher taxes, sales of public property, and budget cuts. Without those funding sources, the validity of the public debt might also be called into question. Yet, clearly, enactment of those policies is not constitutionally decreed. Instead, consider this more plausible interpretation: Congress is precluded from capping all sources of funds that could be used to pay the debt, but not from capping some sources. Accordingly, a debt ceiling is constitutional as long as other funding is not statutorily barred. That means, of course, Congress and the president would be compelled either to reduce spending, raise taxes, sell the Treasury’s mortgage‐​backed securities or gold, or delay principal and interest on debt held by the Federal Reserve. The choices to avoid default are numerous, notwithstanding a debt ceiling.

7. What’s the bottom line?

Here are my conclusions, tempered by awareness that legal authorities across the ideological spectrum have wide‐​ranging views: First, duly enacted appropriations are legally the counterpart of “public debt … authorized by law.” Second, default on public debt, like repudiation, casts doubt on the debt’s “validity,” and therefore is unconstitutional under the Public Debt Clause. Third, a congressional ban on all funding sources to pay principal and interest would lead ineluctably to default, and is thus unconstitutional as well. But fourth, a debt ceiling that forecloses only one source of funding, leaving open several alternative sources, passes constitutional muster. On the other hand, if default loomed because Congress and the president were unable to agree on a solution, I believe the president would be justified in breaching the debt ceiling.

8. Who would have legal standing to challenge the president if he borrowed above the ceiling?

As a practical matter, I suspect no one has legal standing to challenge an executive decision to borrow in excess of the ceiling. Standing to sue entails a showing of imminent, concrete, and particularized injury to the plaintiff – distinct from injury to the broader public. Perhaps Congress as a whole could claim such injury, but that would require a joint resolution, which would never pass the Democratic‐​controlled Senate. Moreover, even if someone had standing, the Supreme Court would likely treat the debt ceiling dispute as non‐​justiciable – that is, as a political question lacking legal criteria by which a court can resolve the impasse.

9. Where do we go from here?

Finally, there is one subject on which legal scholars seem to agree: Nothing good can come from an attempt to invoke the Public Debt Clause. The constitutional implications for separation‐​of‐​powers, the effect on capital markets, and the status of the dollar as the world’s reserve currency– those considerations should convince the Biden administration and Congress that they, not the courts, must restore fiscal sanity.


This post is an updated version of “Defaults, Debt Limits, and the 14th Amendment,” Daily Caller, July 7, 2011.