The Constitution’s other disqualification clause could keep Trump on the ballot

Yesterday, the U.S. Supreme Court heard former President Donald J. Trump’s challenge to state decisions removing him from the 2024 presidential primary ballot. 

Concluding his actions surrounding the Jan. 6, 2021 attack on the U.S. Capitol constituted insurrection, Colorado’s Supreme Court in December declared Trump ineligible for public office under Section 3 of the 14th Amendment. Days later, Maine’s secretary of State also cited Section 3 to exclude Trump from its ballot. Similar disqualification actions are progressing in several other states. 

Arguments have focused on issues such as whether state findings that Trump engaged in incitement of insurrection comport with due process, whether disqualification for insurrection requires a criminal conviction, whether the president is truly “an officer of the United States” and whether disqualification under the 14th Amendment requires enforcement action by Congress.  

Trump’s lawyers claim that allowing state officials to remove presidential nominees of major parties from the ballot would “disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam.” 

Rather than revisiting the cases of former Confederates, speculating about public reaction or exhuming the words of Antonin Scalia, assessment of Trump’s eligibility should move beyond the 14th Amendment to recognize the significance of the Constitution’s first reference to disqualification. That’s found in Article I, in the context of impeachment: 

“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”  

Congress in 2021 addressed the very questions of insurrection and eligibility now arising from the states. One week after Jan. 6, a majority of the House of Representatives voted to impeach Trump on the charge of incitement to insurrection. When the Senate held its trial that February, Trump was by then no longer president. The only sanction if convicted was future disqualification from office. Senators voted 57-43 to find Trump guilty, 10 short of the two-thirds required to convict.  

The Senate’s acquittal of Trump — whether we agree or disagree — is a consequential exercise of constitutional power that supersedes the recent decisions of state officials. Actions taken pursuant to the Constitution “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” The supremacy clause also justifies the Supreme Court’s recent order authorizing federal agents to cut wire fencing placed along the Rio Grande by the Texas National Guard. 

The U.S. Supreme Court should thus conclude that the Senate’s acquittal of Trump for incitement to insurrection and refusal to disqualify him preempt state action in these areas. The contrary decisions of Colorado’s Supreme Court and Maine’s Secretary of State excluding Trump from the ballot must be overturned.   

Despite the Senate’s not-guilty verdict, Trump remains subject to indictment, trial, prosecution or punishment by federal and state governments for incitement to insurrection as well as other crimes and civil actions. Just as the Constitution requires the U.S. Supreme Court to overturn state rulings that Trump is disqualified, it also requires federal courts to reject Trump’s sweeping assertions of presidential immunity.  

“President Trump is still liable for everything he did while he was in office, as an ordinary citizen,” stated Sen. Mitch McConnell (R-Ky.) in justification of his not-guilty vote at Trump’s second impeachment trial. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.” 

Congress retains constitutional powers to revisit its earlier decisions and remove Trump from the 2024 ballot. Whatever the outcome of Trump’s many current civil and criminal trials, the House can move to impeach Trump again. If ever convicted by two-thirds of the Senate, Trump would again be subject to Article I disqualification. 

Alternatively, under the 14th Amendment, the House and Senate could use the normal legislative process to pass a resolution finding that Trump engaged in insurrection and declaring him ineligible for public office. Given the current tenuous Republican majority in the House and the Democrats’ 51-49 majority in the Senate, further congressional action appears remote. 

For now, the Senate’s action in February 2021 to acquit Trump of incitement to insurrection stands as the constitutionally authoritative resolution to disqualification. Trump remains an eligible candidate, and early caucus and primary results suggest he will be the Republican Party’s nominee for president in the general election.   

Stopping Trump’s return to the White House will not occur through judicial or congressional disqualification. Under our Constitution, that requires action this November by the people. 

Frank J. Colucci is an associate professor of political science at Purdue University Northwest and author of “Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty.”