Ban Trump from 2024 ballot? Why courts should rule he can't serve as president again.

A trial that began Monday in Colorado and legal arguments scheduled for Thursday in the Minnesota Supreme Court will test Donald Trump’s eligibility to serve as president.

Both cases raise a monumental question that only the U.S. Supreme Court will ultimately be able to decide: Will we retain the Constitution under which we’ve governed ourselves for 234 years by ensuring that the awesome power of the presidency is never entrusted to someone who will not abide by the verdict of  our nation’s laws for election or reelection to that office?

The premise of a presidential term limited to four years unless the president is lawfully reelected is at the core of the constitutional framework and central to the framers’ goal of not recreating a monarchy. A president who seeks to defy that premise rebels against the Constitution’s very structure.

That premise is vital to the cases in Colorado and Minnesota because they have been brought under Section 3 of the 14th Amendment: "No person shall ... hold any office ... under the United States ... who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same."

14th Amendment protects America's democracy

That Disqualification Clause, inserted after the failed rebellion of the Confederacy, reflected the conviction that nobody who betrayed the oath "to support the Constitution” could be trusted to serve in office again. At least not unless a vote by “two-thirds of each House” of Congress restored the person's eligibility to serve.

The authors of Section 3 recognized that another run at office by anyone who had tried to overturn an election in violation of the oath could end the republic. On that course have so many other countries come to grief, falling into the hands of dictators like Russia’s Vladimir Putin or Hungary’s Viktor Orban. Each won elections and then ruled for years through purely “showcase” elections without having to answer to the people.

Wanting above all to avoid that danger, and drawing on the lessons of world history, our Constitution was carefully framed to prevent the newly created presidency from devolving into a hereditary monarchy or worse.    

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That leaves a paramount question for the courts to answer concerning Trump. What does it mean to engage in “insurrection or rebellion against” the Constitution? It’s important to notice what can be easily missed: The text of Section 3 says exactly that – the disqualifying misconduct is rebellion against the Constitution.

It was the Constitution that Trump tried to overthrow after he lost the 2020 election, as he admitted in December when he called for its “termination.”

Whether by conspiring to create fake electoral slates, soliciting Vice President Mike Pence to illegally reject Congress’ election certification, or allegedly inciting his followers to overrun the Capitol during the Jan. 6, 2021, counting of electoral votes, Trump took the law into his own hands in an attempt to overturn the constitutional structure itself.

That kind of subversion of a fundamental tenet of the Constitution is precisely what the 14th Amendment has to mean by “insurrection or rebellion against” it, the very definition of disqualifying conduct under Section 3.

Nothing is more central to our Constitution’s design than the process for electing a president every four years. That process was debated vigorously during the 1787 Constitutional Convention and was embodied in several key constitutional provisions, including the so-called Vesting Clause: "The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years."

Crucially, the end of that term is determined not by what any candidate wants or believes but by the election itself. As the 12th Amendment puts it: "The Electors shall meet in their respective states and vote by ballot for President. ... The person having the greatest number of votes for President, shall be the President."

The 20th Amendment leaves no doubt about when a president’s four-year term ends: "The terms of the President and Vice President shall end at noon on the 20th day of January."

Trump cannot deny any of this but tries to get around it with arguments that run from the ridiculous to the sublime.

Supreme Court must decide Trump's eligibility to serve as president

A typical example is his claim that he never held an appointed office “under the United States” but “only” the elected presidency. Accepting that claim would turn Section 3 into a bad joke.

Trump also has argued that his supporters won’t stand for disqualifying him and will take to the streets. That’s a possibility, but for anyone who cherishes the rule of law as the source of our freedom, an even stronger concern is that one can’t have a constitutionally based nation and simultaneously ignore the words of the 14th Amendment.  Courts exist to enforce the law, not evade it.

Is Trump blocked from the 2024 ballot?The Constitution could keep him out of the running.

Ultimately, the burden of decision will land at the steps of the U.S. Supreme Court. The justices will face a crossroad. To allow Trump to appear on the 2024 presidential ballot, they would need to explain why any ruling that keeps the former president in the running doesn't itself betray the Constitution.

Or they could hold Trump ineligible and trust that the American people believe enough in the Constitution to live with the results.  

Only the latter choice is faithful to our heritage and the ideals of a constitutional republic – if we can keep it.

Laurence H. Tribe is University Professor of Constitutional Law Emeritus at Harvard University. He has consulted in his individual capacity with counsel to the Colorado and Minnesota plaintiffs. Dennis Aftergut, a former federal prosecutor, is counsel toLawyers Defending American Democracy.