The law is clear: The Supreme Court must not allow Trump on the 2024 ballot 

The U.S. Supreme Court will decide whether Colorado can bar Donald Trump from its primary ballot under Section 3 of the 14^th Amendment for participating in an insurrection; if it decides Trump can proceed, it will raise concerns about the court’s politicization in favor of Republican ideology and Republican candidates. 

But if Trump does become president again, Republican ideology — indeed, any ideology — will no longer be recognizable.  

As he’s made clear, he’d cut aid to Ukraine and encourage Russia to invade NATO members if they don’t pay their share of its expenses. He’d seize control of all U.S. agencies, including the Justice Department, restrict freedom of the press, purge the government of disloyal employees, and fire any attorney general who won’t prosecute his political rivals and critics. He’d foment violent protests and threats against anyone he views as complicit in the decision to bar him. 

This agenda isn’t part of Republican ideology. Maybe Trump’s rhetoric is all bluster. But SCOTUS can’t take that risk. 

In overturning Roe v. Wade, Justice Samuel Alito stressed “we cannot allow our decisions to be affected by extraneous influences,” including violent protests and attacks on anti-Trump actors. That’s less of a worry now; Trump’s ability to foment violence has notably diminished due to fear of arrest and his supporters’ concern their hero won’t rescue them. At recent pro-Trump protests, journalists have outnumbered participants.  

Yet in the past few years, SCOTUS has issued a dozen opinions considering the potential for troublesome consequences, even though the court previously declared “consequences cannot change our understanding of the law.” 

In this case, the consequences of barring Trump from running would be beneficial, ridding us of the worst divisiveness and most serious threat to our democracy since the Civil War. It would also demonstrate SCOTUS was not influenced by politics. 

Of the nine justices, five are avowed “originalists.” Yet they’ve been criticized for abandoning originalism in rulings on abortion, religion and gun rights. For conservative justices who pride themselves on fidelity to the original intent of the Constitution, those are damning criticisms. 

But there are conflicting definitions of originalism. Former Justice Antonin Scalia argued, “The Constitution…means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” On the other hand, Justice Alito and Chief Justice John Roberts argue that while the Constitution’s original values endure, they can be applied to suit changes over time. 

Considering both the consequences of their decision and credible originalist analysis, SCOTUS can and should bar Trump from running. 

Trump’s lawyers argue that efforts to keep him off the ballot “threaten to disenfranchise tens of millions of American voters.” But when the framers drafted Section 3 of the 14th Amendment, that’s precisely what they intended — to ignore votes for insurrectionists.  

Section 3 was originally prompted by an attempt to illegally place Confederate candidates in Congress, which was thwarted, much like Trump’s attempt to replace a legally elected president with an unelected one. Section 3 did not lapse with the passing of the Confederacy. All officials who take an oath to uphold the Constitution, as required by Article VI, must still abide by it. If they foment insurrection, they’re ineligible for office.  

One of the biggest issues during Reconstruction was maintaining the unity of the nation; now it’s maintaining our democracy, which Trump intends to destroy.  

Trump’s lawyers warned that upholding Colorado’s decision to bar him will “unleash chaos and bedlam,” with different presidential candidates on different state ballots. But chaos would be avoided by barring Trump from the presidency. 

On the main issue of fact — whether Trump is an insurrectionist — both the Colorado Supreme Court and the state’s highest court concluded that he is (the Colorado appellate judge agreed, but put him on the ballot anyway, arguing it wasn’t clear whether the president is an “officer” under Section 3). SCOTUS has held that a state court’s findings of fact are taken as presumptive by federal courts unless they are clearly erroneous. It follows that SCOTUS need not review Colorado’s finding that Trump is an insurrectionist. 

Trump’s lawyers also argue that Section 3 doesn’t apply to Trump because the presidency is not an “office” of the United States. In effect, they’re saying the drafters of Section 3 intended that an insurrectionist could hold the country’s highest and most powerful office, but not lower offices. This is preposterous.  

The presidency is clearly an office of the United States. Section 2 of Article II of the Constitution provides, “The President of the United States … shall hold his Office [emphasis added] during the Term of four Years.” And Article II, Section I requires the president to “solemnly swear I will faithfully execute the Office of President [emphasis added].” 

Disqualifications from office under Section 3 are self-executing, and don’t need a judicial decision. This is why not one Confederate leader disqualified under Section 3 was ever charged or tried for insurrection or any other Section 3 violation. Even Confederate leader Jefferson Davis argued Section 3 was self-executing, though he did so as a strategy to avoid being criminally prosecuted for treason (because that would be double jeopardy). 

Disqualifying Trump from office won’t impair Congress’s power to remove ineligibility under Section 3 by a two-thirds vote, making the candidate eligible again. It can do that even after a judicial determination of ineligibility. SCOTUS has every right and every reason, both on constitutional grounds and in consideration of the consequences of its decision, to bar Trump from the presidency. 

Neil Baron is an attorney who has represented many institutions involved in the international markets and advised various parts of the federal government on economic issues.