The 'Plain Language' Path for the Court to Rule, for Now, on Trump's Disqualification
"But rejecting the clear language of the 14th Amendment to say that it bars Trump from running for the office, is to fall prey to the very criticism levelled at some justices: deciding a case based on feelings and politics, rather than law," according to Rory Little, a professor at The University of California College of the Law, San Francisco.
January 18, 2024 at 05:25 PM
9 minute read
CommentaryThere is a plain language, if unsatisfying, path for the U.S. Supreme Court to avoid the politically explosive constitutional issues surrounding Donald Trump's current campaign for the presidency. Unfortunately, the path described below will not be satisfying to people who vehemently oppose Trump, and I count myself among that number. But "constitutional avoidance" is a wise doctrine based on not deciding constitutional cases unless a solid case or controversy demands it. Because the constitutional text of Section 3 of the Fourteenth Amendment only blocks people from "holding" a federal office, and not from running for it, and because something unexpected may happen between now and Nov. 5, the court should, briefly and unanimously, reverse and remand the Colorado Supreme Court decision currently set for argument on Feb. 8.
There seems to be a popular misunderstanding of what the Fourteenth Amendment actually says. The text of Section 3 says nothing about who may run for office. It says "No person shall … hold any office" if they have engaged in insurrection. "Hold," not "run for." Any common understanding of those words means that the amendment says nothing about excluding someone from a ballot. That issue is a matter of state, no constitutional, law. And yet four weeks ago, the Colorado Supreme Court ruled that Trump is constitutionally disqualified to be president and cannot be listed on that state's primary ballots. To the extent that that constitutional ruling embodied a simple textual error lacking clear and complete constitutional analysis, the justices should unanimously say so.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrending Stories
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250