A direct descendant of former President Theodore Roosevelt urged the Supreme Court on Tuesday to uphold a ruling disqualifying Donald Trump from the White House ballot under the 14th Amendment's disqualification clause.
Kermit Roosevelt III, a law professor at the University of Pennsylvania and the great-great grandson of one of the four U.S. presidents on Mount Rushmore, joined the dozens of commentators filing friend-of-the-court briefs to the Supreme Court ahead of its Feb. 8 oral arguments.
In a 54-page brief that's silent on his own presidential heritage, Roosevelt answered arguments by Trump's defenders that that the 14th Amendment's disqualification isn't "self-executing," requiring an act of Congress to enforce it. The Carey Law School professor argues that the position is "obviously wrong" — and the justices shouldn't flinch from that conclusion for fear of the collateral consequences.
"Weighing the consequences of disqualification is not the role of a court, especially where, as here, the Constitution explicitly remits that issue to thepolitical process," Roosevelt's attorney Robert S. Peck writes in his legal brief, urging the court to "affirm" the Colorado Supreme Court's ruling spiking Trump from the ballot in that state.
Beyond the legalese about the clause's "self-executing" nature, Roosevelt says it's just "common sense" that the drafters of the amendment wanted to keep former Confederates from gaining political power.
"The debates and drafting history of the Fourteenth Amendment reveal a pervasive purpose to place certain issues beyond the reach of ordinary politics, to take them out of the hands of oppositional president Andrew Johnson—who was pardoning Confederates—and future Congresses that might be controlled by representatives of the former Confederacy," the brief states.
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Quoting such political figures as then-Representative (and soon-to-be U.S. president) James Garfield, Roosevelt argued that the amendment's drafters "constitutionalized many of the provisions of the Civil Rights Act of 1866 precisely in order to take those issues away from Congress."
"As with civil rights and citizenship, so too with disqualification," the amicus brief states. "Republicans in Congress knew they could not rely on a federal statute that President Johnson could vitiate by pardons and that a future Congress might repeal. Putting a similar disqualification in the Constitution, effective on its own and beyond the power of a bare majority to alter, would be a sensible response. Putting in a disqualification that was ineffective without congressional action would make no sense at all."
Some of Trump's defenders, like his longtime personal attorney, Jay Sekulow, argue that granting each of the 50 states such power is a recipe for "electoral chaos," but Roosevelt argues that Colorado's decision granted the sort of due process demanded by the constitution.
"It is true, of course, that the federal Constitution places limits on the sort of procedures state courts can use," the brief states. "But the procedures followed by the District Court, which included a five-day trial featuring fifteen witnesses subject to direct and cross examination and ninety-six exhibits, and which required the electors to meet a clear and convincing evidence standard, satisfy federal constitutional requirements."
Recognizing the stakes of the legal battle, Roosevelt urged the high court not to consider or flinch from its second-order effects.
"This case presents a question of great national importance—whether the leading candidate of the Republican Party is eligible to hold the office ofpresident," the brief states. "Much of the commentary and many of the arguments presented to this Court assert that the danger of public disapproval, tit-for-tat retaliation by other states, or a general pro-democracy principle support a judicial refusal to enforce Section Three, leaving such an important decision to the political process."
But Roosevelt said that is not "how the Constitution works," adding that the justices cannot "choose among its provisions based on assessments of their wisdom or the consequences of enforcement."
If Congress rejects the disqualification decisions of any state, lawmakers can "remove such disability" under the same clause.
"Section Three provides an unusual instance in which we need not choose between a rule laid down long ago and a current democratic assessment of costs and benefits," the brief states. "We have both, because that is what the Constitution provides. All we need do is recognize the structure the drafters designed. The higher law of the Constitution imposes a disability, but Congress can remove it through ordinary politics."
Roosevelt's attorney told The Messenger that he and his client never considered invoking the 26th president's legacy, and that family history, in their brief.