The US Supreme Court agreed to expedite the review of the Colorado Supreme Court’s decision regarding former president Donald Trump’s participation in an alleged insurrection on January 6, 2021. The question is if the alleged involvement disqualifies Trump from holding office under Section 3 of the Fourteenth Amendment.
The court’s ruling on this matter has potential repercussions on its reputation for impartiality, surpassing even the infamous Bush v. Gore case. Nonetheless, sidestepping a decision entirely on the grounds of political partiality isn’t an option. A possible alternative for the court is invoking the “political question” doctrine.
Trump’s defense team has leaned into the “political question” doctrine, arguing that the Constitution delegates the task of determining a former president’s eligibility under Section 3 not to the courts, but to Congress. This doctrine does not automatically apply simply due to significant political fallout from a case. If that were true, the court wouldn’t have been able to provide a verdict in Bush v. Gore. The doctrine has two main tenets, which critically assess whether legal standards are present for judiciary judgment, and if the problem at hand is specifically passed to another branch of government by the Constitution.
Both questions seem to have potential judicial resolution. The question of whether Trump’s actions on January 6 constitute an insurrection is something courts could adjudicate, providing factual disputes are resolved. The second question is whether the role of president is one that an insurrectionist is disqualified from. In the past, courts have effectively used legal analysis to decipher similar queries.
The aspect of the “political question” doctrine that hinders judicial resolution is the delegation of certain questions to other branches of government by the Constitution. This was last employed when the court refused to delve into impeached federal judge Walter Nixon’s assertion of his ‘trial’ needing all senators present for the entire testimony, similar to a criminal case jury.
If one considers Section 3’s final clause, which reads “But Congress may by a vote of two-thirds of each House, remove such disability”, it clearly points to Congress’s responsibility in the final decision, distancing the court from the process altogether. This leans towards the decision being more aligned with political, rather than legal, judgment.
Assuming all this, the proper method to invoke Section 3 for a president would involve impeachment and a Senate conviction. The matter would then be further adjudicated by Congress, not by the courts.
While using the “political question” doctrine as a way to resolve this predicament is far from flawless, it does allow avoidance of the Supreme Court potentially being a decisive factor in the 2024 election, thus upholding the principle of the separation of powers.
This situation is currently being legally analysed in Trump v. Anderson, with oral arguments set for February 8, 2024.