The US Supreme Court is examining the exclusion of former President Trump from the presidential election. It is uncertain how it will decide, but its decision will have a lasting impact on how the election unfolds. The impact of the US election will be global affecting everything from the functionality of international institutions to international trade, global climate change mitigation, the future of global security, including military support for Ukraine and relations with China. A second Trump term could transform the U.S. into an “illiberal democracy.” Isolationist tendencies, paired with aggressive, unilateral trade and security policy, would prevail at a time of grave geopolitical peril with potentially catastrophic consequences, particularly for Europe.

A historic disqualification trial

After clear victories in Iowa and New Hampshire, former US President Donald Trump is leading by a large margin ahead of the next Republican primaries and caucuses. The only remaining rival, former UN ambassador and ex-governor of South Carolina, Nikky Haley, will have to hope for a miracle in the upcoming primary in her home state of South Carolina on February 24 and on Super Tuesday on March 5, when elections will be held in 15 states, to have any chance of securing the Republican nomination.

At the same time, it is still unclear whether Trump is even eligible to run for the country’s highest office or whether he must be disqualified from the election due to his involvement in the storming of the Capitol on January 6, 2021. The US Supreme Court is now dealing with this question in a historic trial. It is the first time in history that the highest court of the United States has had to rule on the eligibility of a presidential candidate. The first hearing begins on February 8.

The case concerns a landmark ruling of the Colorado Supreme Court on December 19, 2023, which excluded Trump from the Republican primary in the state for precisely this reason. The court considered it proven that Trump was guilty of insurrection in connection with the storming of the Capitol by his supporters and removed him from the state’s presidential primary ballot. It invoked Section 3 of the 14th Amendment to the Constitution. The US Supreme Court will now hear Trump’s appeal against his exclusion from the Republican primary election in Colorado. The importance of its decision can hardly be overestimated.

Who can run for the office of US President?

The wording of the US Constitution is unambiguous. Anyone who was not born in the United States cannot become US President. This is stated in Article II Section 1: “No Person except a natural born Citizen […] shall be eligible to the Office of President.”

There are also other restrictions enshrined in the constitution. For example, a candidate for the highest office in the country must be at least thirty-five years old and have been a resident of the United States for at least fourteen years. Again, these requirements are not controversial.

However, another eligibility criterion that has long gone unnoticed has been the subject of heated legal and political controversy for some time in the US and is now being considered by the Supreme Court. It is in Section 3 of the 14th Amendment to the Constitution, which prohibits former public officials who have participated in an insurrection or rebellion from holding public office again. It reads:

“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.”

This clause was originally ratified in the wake of the American Civil War in 1868 as part of the 14th Amendment to exclude former Confederates from the government. Numerous legal experts are of the opinion that it is fully legally operative and no less part of the Constitution than the other provisions of the Fourteenth Amendment – and therefore, Donald Trump is no longer allowed to run for president (or any other office).

For example, William Baude and Michael Stokes Paulsen, two renowned constitutional law experts, came to the clear conclusion in a comprehensive legal opinion that Section 3 of the Fourteenth Amendment “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election”.

The opinion of Baude and Paulsen matters, as both are members of the Federalist Society, a conservative legal association, and renowned representatives of originalism, i.e., the legal doctrine that the majority of conservative judges on the US Supreme Court likes to refer to. According to this doctrine, the Constitution should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written.

The highest court of the United States would, therefore, have good legal grounds to uphold the decision of the Colorado Supreme Court and exclude Trump from the election. Whether it will do so, however, is uncertain, to say the least.

How will the Supreme Court decide?

The US Supreme Court travels in unchartered territory. There is no clear precedent to give an indication of how the court will rule. But even if there were, the sitting Supreme Court Justices have shown in their recent decision on the issue of abortion, overruling long-standing precedent, that they do not necessarily feel bound by prior rulings.

supreme court justices

Thus, there are many possible outcomes. For example, the Supreme Court could rule that the storming of the Capitol on January 6, 2021, was not an insurrection or, if it was, that Trump was not substantially involved. Or it could argue that Section 3 does not apply to the presidency. It could also subscribe to Baude and Paulsen’s originalist reading of the Constitution and disqualify Trump from the election.

However, the latter seems rather unlikely, as excluding Trump from the election would be tantamount to a political earthquake. And the Supreme Court has become extremely politicized and compromised in recent years.

A politicized and compromised Supreme Court

The current Supreme Court is dominated by a conservative majority. Three of the nine justices were appointed by Trump – three others by his Republican predecessors (see table). These justices pursue a clear conservative agenda, most notably manifested in their decision to eliminate the constitutional right to abortion after nearly 50 years – a rare reversal of a long-standing right that has fragmented reproductive rights in America.

In addition, the integrity and neutrality of the court are increasingly being called into question. Supreme Court Justice Clarence Thomas has accepted large gifts from people who have an interest in the Court’s decisions. More importantly, for the case discussed here, his wife Gini attended the very rally that preceded the violent attack on the US Capitol on January 6, 2021. So far, Justice Thomas has refused to recuse himself, suggesting that the Supreme Court’s recently adopted new ethics rules are as ineffective as their critics have claimed.

Apart from these issues, the most powerful argument against using Section 3 of the 14th Amendment to disqualify Trump from the election is arguably that this would prevent the American people from voting for the candidate of their choice. However, “let the voters decide” is a purely political argument, not a legal one. And it is a dangerous argument because it rejects the legal and constitutional order in favor of what seems to be politically opportune at a given moment.

“The Constitution cannot be overruled or disregarded by ordinary election results,” as legal scholars Baude and Paulsen have unequivocally pointed out. The Supreme Court justices, who by definition are the guardians of the Constitution, would risk undermining the authority and legitimacy of their institution and the rule of law if they deliver what historian Timothy Snyder calls a “pitchfork ruling,” They must try to find a way through a legal and political minefield. But whatever they decide, the political implications will be huge and have a lasting impact on how the presidential election unfolds.

About the author

Peter Walkenhorst is Senior Project Manager in Bertelsmann Stiftung’s Europe’s Future Program, where he works on transatlantic relations and European-Chinese relations. Previously, he was a member of the foundation’s Germany and Asia Program, responsible for projects on the systemic conflict with China and social cohesion in Asia.

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