Trump’s Ballot Issue Is a Political Question Courts Can’t Answer

The US Supreme Court has agreed to an expedited review of the Colorado Supreme Court’s decision that former president Donald Trump participated in an insurrection on Jan. 6, 2021, for which Section 3 of the Fourteenth Amendment of the Constitution disqualifies him from being president.

It is hard to imagine that the court will be able to reach anything approaching consensus on the merits, either way, in a case that is more fraught with danger for the court’s reputation for impartiality than even Bush v. Gore.

Much as some pundits and scholars may wish, the court can’t simply refuse to decide the case because it’s too hard or because it will be accused of playing politics no matter which way it rules.

There is, however, the well-recognized “political question” doctrine that Trump has raised. The court should invoke this doctrine to dismiss the case on the ground that the Constitution assigns the power to decide whether a former president can be excluded from the ballot under Section 3 to Congress and not the courts.

The political question doctrine, as articulated by the Supreme Court, doesn’t apply just because the outcome of a particular case would have very significant political ramifications. If it did, then the court couldn’t have ruled in Bush v. Gore, and it couldn’t decide whether Trump is immune from criminal—or even civil—liability for his actions on Jan. 6. It would also rule out such highly charged cases as those involving school desegregation, abortion, and the right to carry firearms outside the home.

There are two major prongs of the political question doctrine. The first asks whether there are standards that enable courts to make rulings of the kind that courts traditionally do. For constitutional cases such as this, the question would be, does applying Section 3 to the facts of this case look like the kind of work that judges ordinarily perform? In particular, is Section 3 reasonably specific, or would judges be setting the basic policy on their own, with no meaningful guidance from the Constitution?

On that aspect of the doctrine, the questions are of the kind that judges regularly are called on to decide. There are disputes about what Trump actually did on Jan. 6, and whether his actions meet the legal definition of an insurrection. However, the courts could surely resolve them if Trump had been charged with the crime of insurrection, which prosecutor Jack Smith didn’t do.

The second question is also susceptible to judicial resolution: Is the office of president included in the offices for which a participant in an insurrection is no longer eligible? The problem is that Section 3 lists a number of specific offices, but doesn’t mention president, suggesting the Fourteenth Amendment was written to exclude the president (and the vice president).

Those on the other side, which includes a majority of the Colorado Supreme Court, argue it makes no sense to exclude insurrectionists from every federal or state office except the most important one—the presidency. Again, the answer may not be straightforward, but courts decide similar questions all the time, using standard tools of legal analysis to find the answer.

The other prong of the political question doctrine provides a more promising and intellectually responsible way for the Supreme Court to decline to decide whether Trump violated Section 3. Under it, courts must refuse to decide questions that are textually committed by the Constitution to another branch of government. Most recently, the court invoked that in refusing to decide the claim of impeached federal judge Walter Nixon that his “trial” required all one hundred senators to sit through all the testimony, just like a jury in a criminal case must do.

The court could have (and some of us say should have) simply ruled that trial in that context didn’t require what Nixon urged, as long as basic rules of fairness were followed. Instead, it held the Constitution committed the question of how to conduct a trial up to the Senate, and the courts had no basis to step in no matter what the Senate did.

The political question argument as applied to Section 3 focuses on its final clause, which has been largely overlooked until now: “But Congress may by a vote of two-thirds of each House, remove such disability.” The fact Section 3 assigns that function to Congress, the branch selected by voters, just like it assigns the impeachment function to Congress, strongly indicates the ultimate decision isn’t entirely a legal one, but a political one, in the best sense―not one decided on the basis of political parties, but one requiring consensus of the politically accountable branch, which is Congress, not the courts.

If this is correct, then the proper way to invoke Section 3 for a president, at least absent a criminal conviction, is for the House to impeach him and the Senate to convict him, with the possibility of redemption in the Congress that found the violation.

The final clause provides another reason why the enforcement of Section 3 doesn’t belong in the courts. Imagine in this case that the Supreme Court affirmed the Colorado decision: What would happen next? Trump would presumably demand that the Congress “remove such disability” and the process would start again. It isn’t likely that those who wrote Section 3 would have wanted that kind of do-over, especially because it would mean the Supreme Court had issued an advisory opinion that had no legal force or effect. The more likely conclusion is that proceedings under Section 3 were never intended to be in the courts at all.

Where does this lead in the case of Donald Trump? For him, the proper process has taken place, but, to the dismay of many, the Senate didn’t convict him of the charge of insurrection, and therefore the courts have no role in deciding whether his name may remain on the ballot in Colorado and elsewhere.

A ruling to that effect, based on the political question doctrine, enables the Supreme Court to remain true to separation of powers principles and avoid having the courts be seen as the decider of the 2024 election.

Is the political question doctrine a perfect answer to this dilemma? Of course not, but Section 3 isn’t a model of clarity, and this answer is, like democracy, better than all the other alternatives.

The case is Trump v. Anderson, US, No. 23-719, oral argument Feb. 8, 2024.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Alan B. Morrison is GW Law’s associate dean for public interest and public service law and professorial lecturer in law.

Write for Us: Author Guidelines