Section 3 and the Specter of Political Violence

In less than a month, the Supreme Court will hear argument about whether to affirm the Colorado Supreme Court’s decision that, under Section 3 of the 14th Amendment, Donald Trump is ineligible to stand for the 2024 presidential election. In the weeks since the Colorado decision, more Section 3 challenges have cropped up across the country, as reflected in Lawfare’s litigation tracker. And what was once a torrent of commentary about the merits of this legal strategy has become a veritable flood(for just a few, see here, here, here, here, here, and here). What lies just barely under the surface of this commentary is a pressing question: Is it reasonable to expect political violence if the Supreme Court’s decision in any way prevents Trump from being listed on the 2024 ballot? And if yes, what is the most likely course of such violence, and how should the U.S. government respond?

Today, I construct a hypothetical progression of events following a Supreme Court decision barring Trump from the ballot to map out how judicial, executive, and legislative branch officials might respond to what I will show is the predictable political violence that would follow. I don’t seek to fearmonger or to suggest that this expectation of violence, building on existing threats, should dictate the Supreme Court’s decision. But I believe it is reasonable to expect an escalating cycle of unrest, culminating in President Biden having to use military force against Trump’s political supporters. We must be prepared.

Part I: Constructing the Hypothetical

In this hypothetical I answer what would happen if the U.S. Supreme Court upheld the Colorado Supreme Court’s decision that Section 3 disqualifies Trump from being listed on the ballot. I approach this inquiry in the spirit of the tabletop exercises common in military planning. (RAND provides a helpful background on this kind of exercise). Specifically, I rest my projections on three assumptions:

1. Donald Trump will criticize each instance of government action that negatively affects his prospects for winning reelection. With each such action, Trump’s rhetoric will become more violent.
   

2. A group of Trump supporters now exists that is willing to use force to vindicate Trump’s interests if called upon to do so. This group expands in size with each instance of government action adverse to Trump’s reelection prospects.
   

3. The federal government response to civil unrest will proceed as provided in existing government policy and as reflected in recent practice.
   

I will document each time I rely on these assumptions. I will also describe where in law, government policy, or past practice I draw the projected government response.

Assumption 1 is borne out by Trump’s conduct in the months leading up to Jan. 6, his responses to each of his many criminal indictments, and his response to the Colorado Supreme Court’s decision. An uptick in violent rhetoric followed days after the Colorado decision. This included an increase in references to “insurrection” and “civil war” among Trump supporters and threats against Colorado Supreme Court justices. Trump is contributing to this rhetoric. The day after the decision, he wrote on Truth Social: “NO SUCH THING HAS EVER HAPPENED IN OUR COUNTRY BEFORE. BANANA REPUBLIC??? ELECTION INTERFERENCE!!!” Trump also reposted other messages calling the Colorado decision election interference, including at least one that explicitly warned of civil war (original post taken down but documented here). I will take these statements as a baseline for Trump’s future rhetoric.

Assumption 2 is similarly factual—there has been a documented rise in right-wing violence for many years, fanned at least in part by Trump’s acolytes. It’s reasonable to expect that this base of support, predisposed to violence, will increase in size as perceptions of Trump’s persecution grow. Trump’s reelection campaign, after all, has benefited from greater fundraising and more favorable polling with each of his indictments.

Finally, Assumption 3 encapsulates the well-worn wisdom that the government is often, if not always, prepared to fight the last war. More charitably, it reflects a consistent policy regarding the continuum of violence used in response to civil unrest: a presumption that police functions are primarily a state and local responsibility (as provided in Defense Department policy); that, when state and local resources are fully expended, federal law enforcement support should precede federal military support; and that National Guard personnel should be employed for domestic civil disturbance response before members of the active-duty military (a perspective articulated, for example, by former Secretary of Defense Mark Esper).

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Phase One: The Supreme Court hears argument and deliberates. There is increasingly blatant, widespread discussion of violent reaction to the Court’s proceedings on online platforms. Trump, in campaign stops and social media posts, repeatedly calls on the Supreme Court to save the United States from an elite coup. He also calls on his supporters to be ready for the worst. (Assumption 1)

In response to this worsening security environment, the Supreme Court Police reestablishes barricades around the courthouse (Assumption 3, like it did during Dobbs). It also coordinates with the U.S. Capitol Police (USCP) and District of Columbia Metropolitan Police Department (D.C. Police) to establish a heightened security posture across the Capitol Complex. This would be accomplished under 40 U.S.C. §§ 6121 and 6123. (For more on the USCP’s overlapping jurisdictional authority in the Capitol Hill area, see 2 U.S.C. §§ 1961 and 1967.) The USCP requests significant military personnel support, since, unlike federal law enforcement support, military support may be provided on a nonreimbursable basis. D.C. Police also requests military support from the D.C. National Guard under § 49-103 of the D.C. Code.

I have no good way of projecting whether there would be sufficient D.C. National Guard personnel to respond to these requests for assistance (due in part to ongoing debate over reforms to D.C. National Guard command and control). In the lead-up to President Biden’s inauguration, for example, requests for more than 20,000 military personnel required that the Department of Defense source National Guard personnel from a variety of jurisdictions. If D.C. National Guard support is insufficient, consistent with past practice, the Department of Defense is likely to again use National Guard personnel from outside D.C. in a mixed federal-state duty status. This duty status allows the National Guard members to perform law enforcement functions notwithstanding the restrictions of the Posse Comitatus Act, likely by providing support under 2 U.S.C. § 1970 after being deputized by the USCP under 2 U.S.C. § 1974.

The executive branch also responds to the worsening security situation by deploying additional protective resources throughout Washington, D.C. (as it did in 2021). Much of this might be achieved under 40 U.S.C. § 1315. This is an exceedingly broad statute—it requires that the secretary of homeland security “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal government ... and the persons on the property.” It also authorizes the secretary to designate other departmental employees to aid in this protective duty (in line with the Department of Homeland Security’s long-standing use of the authority, notwithstanding repeated criticism of its use during the Trump administration). Biden might also rely on a doctrine of inherent constitutional authority to use the military to protect federal functions, persons, and property.

Finally, the secretary of defense might place active-duty military personnel throughout the Washington, D.C., region on alert for a potential deployment under provisions of the Insurrection Act (a similar step was taken during the military response to Washington, D.C., Black Lives Matter protests).

Phase Two: Trump campaign loses at the Supreme Court. Donald Trump responds with a flurry of posts on Truth Social. He pans the Supreme Court for capitulating to the radical left. He reposts statements from a wide swath of right-wing figures calling on supporters to retake the country (Assumption 1). Since the Court will likely render a decision on an accelerated timeline, it’s possible that a significant number of Trump supporters will either remain in D.C. for the decision or be ready to descend on D.C. quickly. It seems equally possible that these supporters would, if called upon to do so, again attack a variety of federal properties, including the Supreme Court.

Phase Three: Litigation begins to implement the Supreme Court decision through each state and territory election code. The locations at which we might reasonably expect violence would, at this point, proliferate. This stems largely from the fact that any ballot disqualifications must be implemented through individual state and territorial election law procedures. As the Colorado Supreme Court noted, not all state courts have determined that their election codes allow for bringing such a challenge.

There would be an urgent need, at this point, to protect state courthouses and election offices throughout the country. Governors would likely mobilize, perhaps in significant numbers, state law enforcement and National Guard personnel (as has been done in New York). Trump would likely call on “patriotic” state officials to not comply with what he would predictably call an “illegitimate” and “illegal” Supreme Court ruling (Assumption 1). He would call for his partisans to “help” these local officials “save our country” from elites. Right-wing militia groups throughout the country are likely to begin mobilizing for action (Assumption 2).

We might anticipate three categories of responses in the days and weeks that follow. First, some state and local officials might reciprocate by attempting to bar Biden from the ballot (though it’s unclear on what grounds they might reach for, as no plausible case can be made that Biden has engaged in an insurrection). Second, other state and local officials might refuse to implement court decisions executing the Supreme Court’s ruling. And third, Trump supporters might impede the work of state and local officials who faithfully implement state court decisions barring Trump from the ballot.

As to this third scenario, a wider range of the most committed Trump partisans could join with existing right-wing militias to forcibly prevent state and local officials from administering the election (Assumption 1). Given the prior deployment of police and National Guard resources to protect courthouses, one or more governors may determine that their resources are insufficient to respond to this rising tide of violence and, therefore, request federal military assistance. We might expect a similar call for assistance in jurisdictions where state and local officials refuse to implement state court decisions if the legislature (or governor) is politically disposed to requesting support from President Biden.

The most straightforward mechanism for responding to these requests would be 10 U.S.C. § 251. This provision of the Insurrection Act authorizes the president to use the military to help a state suppress an insurrection. But the president can also act without a request for military support. Under another provision of the Insurrection Act, 10 U.S.C. § 252, the president, if he judges that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings” could then use military force independent of a state request. Further, under another provision of the Insurrection Act, 10 U.S.C. § 253, the president would only need to find that an “insurrection, domestic violence, unlawful combination, or conspiracy” “hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law” to deploy the military. Both sets of statutory criteria would easily be satisfied under this fact pattern.

Finally, if the president finds it necessary to use the military at polling locations, he would also need to declare that this use of the military is “necessary to repel armed enemies of the United States,” to avoid a general prohibition on placing troops at polling locations. Even under the assumptions of this hypothetical, I’m unable to project what might happen after invoking any of these Insurrection Act provisions.

Part II: Preparing for the Possibilities

The jurists and executive branch officials tasked with deciding whether to affirm the Colorado Supreme Court’s decision and effectively bar Trump from running for office under Section 3 confront an existential quandary. To do so runs the real risk of widespread political violence. And yet, as noted above, allowing the electoral process to run its course might well end the same way if Trump loses the general election. And then there is the prospect of a second Trump administration, with all the democratic backsliding that is expected. We can’t relegate these possible realities to the background of our national debate, just as we can’t remove political sequelae from the task of constitutional interpretation. We must begin, today, to contemplate and prepare for these realities. In this section I briefly sketch out how government officials might begin to do so.

A View From the Bench

Reasonable minds can disagree about whether justices should care about the above consequences of deciding that Section 3 bars Trump from office. But I am confident that they would (and do) bear on the mind of some justices (just as they bear on the minds of many legal commentators). If so, then they should be transparent and detailed about the role these consequences play in their decision-making. One salutary model is Chief Justice Roger B. Taney’s opinion in Luther v. Borden, which concerned the Constitution’s Guarantee Clause. Before the hounds descend, I want to be clear—there are any number of reasons why the Guarantee Clause is meaningfully different from Section 3. I’m only concerned here with how the Court has been transparent in recognizing the role of political consequences (similar to those we confront today) in its opinions.

The Guarantee Clause provides that:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or the Executive (when the Legislature cannot be convened) against domestic Violence.

For the uninitiated, Luther v. Borden arose from Dorr’s Rebellion, a civil war within Rhode Island from 1840 to 1841 between the existing government, operating under a colonial charter that sharply limited the electoral franchise, and a rival government, organized under a revised constitution with a broader franchise. The case was precipitated by a trespass action brought by Martin Luther, a member of the rival government’s militia, against Luther Borden, who as a member of the charter government’s militia entered Luther’s house to arrest him. The Supreme Court was asked to determine whether the charter government at the time of the alleged trespass constituted the legitimate government of Rhode Island, thereby justifying Borden’s actions.

The Supreme Court held that it rested with Congress, not the judiciary, “to decide what government is the established one in a State.” The Court found that Congress had recognized the charter government even though there had not been enough time for the rival government to attempt voting on or sending an alternate slate of congressmen. Why this degree of deference to Congress, without so much as an inquiry into the textual requirements of the Guarantee Clause? In Chief Justice Taney’s words:

[I]f this court is authorized to enter upon this inquiry ... and it should be decided that the charter government had no legal existence during the period of time above mentioned ... then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals. When the decision of this court might lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction.

The fact that Taney put in the foreground what is all too often nebulously referred to as “consequences” or “politics” is important. Most essentially, it promotes transparency with the public. If something is dispositive, or even consequential, in judicial reasoning, it should be reflected in the Court’s opinion. At a time of ever-decreasing faith in the Supreme Court as an institution and given the deep political fissures that underpin efforts to bar Trump from office, it is more important than ever that there be transparency in judicial reasoning.

A View From the White House

It is equally incumbent on executive branch officials to plan, right now, for how they intend to respond to, and deescalate, any potential civil unrest. Much of this is quite wonky at first glance: What is the right mix of federal law enforcement personnel to adequately protect federal buildings without instigating an unruly crowd? What events should trigger the use of military personnel to support these law enforcement efforts? Which military personnel should be used, and how will this analysis be affected by governors making robust use of their own National Guard personnel in their own jurisdictions? Who will be empowered to coordinate these law enforcement and military responses? How will disparate rules for the use of force be reconciled? How would the president manage a deployment under the Insurrection Act, particularly in jurisdictions where there isn’t a state request for support? But getting the answers to these questions right is absolutely fundamental to avoiding an ever-worsening cycle of violence and democratic backsliding.

There are plenty of historical examples to inform how officials might answer these and innumerable related questions. But many of these examples, particularly as they concern the Insurrection Act, are half a century or more old. Moreover, the scale of foreseeable domestic unrest has the potential to far exceed what we experienced on Jan. 6. Hoping for domestic stability courts the real risk of a disjointed response, opaque to the general public, that may well further inflame the fires of discontent. Which is why it is all the more important for the executive branch to be clear with the public about its plan for responding to domestic unrest, both before it occurs and during a crisis.

A View From Capitol Hill

Finally, members of Congress cannot stand on the sidelines as we enter this season of discontent. At a minimum, they should take their oversight responsibility seriously to insist that the executive have a well-considered, sufficiently transparent plan for responding to domestic unrest in the year to come. This would mix briefings and consultations out of the public eye with more public oversight, in whatever mix best promotes concrete action over political grandstanding. They should demand the same detailed plans from the U.S. Capitol Police, over which they have even more direct control, and the Supreme Court Police.

But members of Congress can, and should, do more here than just needle other branches of government to act. The window for taking up recommendations to make the Insurrection Act more transparent and accountable is fast closing, if it has not already passed. And we must not forget that Congress could dispose of the current crisis by immunizing Trump from the prohibitions of Section 3, a decision no less difficult than the one facing the Supreme Court right now.

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We cannot avoid our politics, nor relieve the burdens of our conscience, by limiting ourselves to the search for legal certainty. In the days, weeks, and months to come, thousands of officials will face countless moments of decision that defy easy answers. As these moments arise, officials will attend not only to constitutional text but also to the dictates of our political reality. This task must begin in earnest today