Just three days after the Supreme Court lifted a lower court injunction that blocked federal agents from cutting the razor wire installed at the border by the Texas National Guard, former president Donald Trump urged “all willing States to deploy their guards to Texas to prevent the entry of Illegals, and to remove them back across the border.”
The following day, Trump’s exhortation was answered by the governors of Oklahoma, Idaho, and Florida. It’s a scenario one Trump-aligned congressman had already described as a civil war before Trump’s clarion call.
This recent crisis is something the justices should keep in mind as they consider whether Section 3 of the Fourteenth Amendment—which prohibits certain people from holding “any office, civil or military” if they “have engaged in insurrection or rebellion”—bars Trump from office.
What could happen if Trump again issues a call-to-arms, but this time designed to help him escape a criminal conviction—or worse, to once again contest the will of the voters after losing the coming election? Would governors considering Trump’s request for military support be afraid that their assistance could lead to a Section 3 disqualification that ends their political career? Or would they yield to Trump—again—safe in the knowledge that the Supreme Court had already ruled Section 3 a dead letter?
Many commentators have argued that the court can somehow thread the needle between these outcomes, preserving the strength of Section 3 while leaving Trump on the ballot. Appealing to notions of democracy and implying dire consequences if the court fails to heed their warnings, they urge that the court can dodge the issue this time, and in doing so, leave the country better off.
But finding a way out of this case would be more dangerous than ruling against Trump—for two reasons.
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