Legal Challenges to Trump's Potential 2024 Candidacy: An Unconstitutional Exercise in Lawfare
State court proceedings have begun in Colorado, Michigan, and Minnesota, with lawsuits aimed at preventing Donald Trump from appearing as a presidential candidate on the ballot in the upcoming presidential election. However, the judges presiding over these cases should recognize that the text, history, and application of the 14th Amendment clearly indicate that they lack the legal authority to take such action.
Challengers Invoke the 14th Amendment
The challengers, citing Trump's alleged actions on January 6, 2021, are invoking Section 3 of the 14th Amendment, the disqualification clause. They argue that this clause prevents Trump from serving as president even if elected, and therefore, he should be removed from the ballot by state election officials. However, there are three major legal issues with this claim.
Legal Problems with the Claim
Firstly, 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 held any of these positions. The U.S. Supreme Court ruled in 1888 in U.S. v. Mouat that "officers" are only those individuals who are appointed to positions within the federal government. Elected individuals, such as the president and vice president, are not officers under Section 3.
Secondly, no federal court has convicted Trump of engaging in "insurrection or rebellion" as defined by 18 U.S.C. §2383. Moreover, in the second impeachment resolution against Trump on January 11, 2021, the House of Representatives charged him with "Incitement of Insurrection." However, the Senate acquitted him. Given our federal constitutional system, state and federal courts should not contradict Congress's findings on this issue.
Lastly, there is an argument, already accepted by one federal court, that Section 3 no longer exists constitutionally. The 14th Amendment, ratified in 1868 after the Civil War, was aimed at former members of the Confederate government and military who had previously been in Congress or held executive posts. However, Congress voted to remove the disqualification clause twice, with no language preserving any of the disqualifications for future cases.
Lawfare at Its Worst
In essence, these challenges to Trump's potential candidacy represent lawfare at its worst, attempting to use the law and the courts as a political weapon. All of these lawsuits should be dismissed. If any state courts rule against Trump, they should immediately stay their decisions and allow Trump to remain on the ballot. If their decisions are later overturned by an appellate court after the election, when votes have already been cast, there will be no viable remedy. Conversely, if their rulings are upheld, even if Trump won the election, he could still be barred from serving.
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Implications of Political Uncertainty for New Businesses
The ongoing lawsuits aimed at barring Donald Trump from the future presidential ballot signal a period of political uncertainty. This instability can have significant implications for new businesses, particularly those operating in sectors heavily influenced by political decisions and regulatory changes.
Market Volatility and Business Strategy
Political uncertainty often leads to market volatility, which can impact business strategies. New businesses must be prepared to adapt their plans and operations to accommodate potential changes in the political landscape. This might involve diversifying their offerings, expanding into new markets, or adjusting their financial strategies.
The "Hot Take"
Political uncertainty is an inevitable part of the business landscape. However, the current lawsuits and their potential implications for future presidential elections represent an unusual level of unpredictability. New businesses must be proactive in managing the risks associated with this uncertainty. This might involve closely monitoring political developments, seeking expert advice, and developing flexible business strategies. While political uncertainty presents challenges, it can also open up new opportunities for businesses that are able to adapt and innovate in response to changing circumstances.
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