Judges have no legal authority to bar Trump from 2024 ballots

Story by Hans von Spakovsky  • 5h   Washington Examiner

As state court proceedings get under way in Colorado, Michigan and Minnesota in lawsuits aimed at barring Donald Trump from appearing as a presidential candidate on the ballot in next year’s presidential election, the judges in those cases should understand that the text, history, and application of the 14th Amendment make it clear that they have no legal authority to take any such action.

Due to Trump’s supposed actions on Jan. 6, 2021, the challengers are trying to argue that Section 3 of the 14th Amendment, the disqualification clause, prevents him from being president even if he is elected, so he should be removed from the ballot by state election officials.

Section 3 provides that:
No person shall be a Senator or Representative in Congress, or elector for President and Vice President, or hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same … . But Congress may, by a vote of two-thirds of each House, remove such disability.

Because Trump allegedly engaged in an insurrection, according to the challengers, he is disqualified by Section 3.

There are three major legal problems with that claim, however.

First of all, Section 3 only applies to individuals who were previously a “member of Congress,” an “officer of the United States,” or a state official. Trump has never been any of those. He has never held state office or been a U.S. senator or representative, and the U.S. Supreme Court held in 1888 in U.S. v. Mouat that “officers” are only those individuals who are appointed to positions within the federal government.

Individuals who are elected—such as the president and vice president—are not officers within the meaning of Section 3. The Supreme Court reiterated that view in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board, in which Chief Justice John Roberts concluded “the people do not vote for ‘Officers of the United States.’” They are appointed under Article II of the Constitution.

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