Filing late in the day to meet the Jan. 18, 2024, deadline, former President Donald Trump submitted a brief to the U.S. Supreme Court that asked the justices to overturn the Colorado Supreme Court’s decision to remove him from that state’s primary ballot.
Norma Anderson, a Republican and former Colorado state lawmaker, and several other plaintiffs had filed suit in September 2023 to keep Trump off the 2024 Colorado ballots. The plaintiffs argued that Trump was disqualified from public office because his “efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States.” Their arguments were based on Section 3 of the 14th Amendment of the Constitution, which bans insurrectionists from holding public office.
The Colorado Supreme Court issued its ruling in the case, originally known as Anderson v. Griswold, on Dec. 19. The Colorado justices concluded that Trump was disqualified from holding the office of the president because of his actions on Jan. 6, 2021, and they affirmed the trial court’s conclusion that Trump engaged in an insurrection.
“These actions constituted overt, voluntary, and direct participation in the insurrection,” the court majority wrote.
Trump faces more than a dozen similar legal challenges to his candidacy in other states as well, based on Section 3. Many complainants, jurists and constitutional law scholars argue that Trump is disqualified to hold office because he “engaged in insurrection or rebellion” against the U.S. based on his actions before, during and after the attack on the U.S. Capitol on Jan. 6, 2021.
Trump appealed the Colorado Supreme Court’s decision to the U.S. Supreme Court, and the justices agreed to consider the case. In his Jan. 18 brief, Trump presented a range of arguments for why the Colorado decision was wrong. Chief among them: He claimed that Section 3 of the 14th Amendment does not apply to the presidency and that he did not engage in an insurrection against the United States.
Describing his actions on Jan. 6, 2021, Trump’s brief says “Calling for peace, patriotism, respect for law and order, and directing the Secretary of Defense to do what needs to be done to protect the American people is in no way inciting or participating in an ‘insurrection.’”
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Officers and insurrections
Trump’s brief attacks the Colorado Supreme Court’s “dubious interpretation of (S)ection 3 of the Fourteenth Amendment.” He argues that Section 3 does not apply to the presidency because the “President is not an ‘officer of the United States.’” Trump points to other parts of the Constitution that use the term “Officer,” and he argues that an “Officer of the United States” only includes political appointees, such as the Secretary of State, and not anyone who is elected to an office.
There is merit to this argument, but Trump confuses the original intent of the Framers, when the Constitution was initially ratified, with the intent of the 39th Congress that drafted the 14th Amendment decades after the nation’s founding. Several constitutional law scholars argue that the 39th Congress did intend for Section 3 to apply to the presidency because congressional records highlight senators’ and representatives’ specific comments that it should.
Whether Section 3 applies to the presidency is likely the first question that the Supreme Court will have to answer. While Trump also claims that he did not engage in an insurrection, the justices likely will not consider whether he did or not because the court generally does not disturb the factual conclusions of trial courts.
But the justices may have to consider the other legal questions that Trump raises. Trump argues that even if Section 3 applies to the presidency, it cannot be enforced because Congress has not passed a law to enforce it. But as a constitutional law scholar, I believe that perhaps his strongest argument and the justices’ easiest legal question to answer turns to the plain text of Section 3, which states that it bars insurrectionists and rebels from holding office. It does not say anything about running for office.
Bullets, not ballots
The 14th Amendment, ratified in 1868, is considered a “Reconstruction Amendment,” along with the 13th and 15th amendments. Congress and state legislatures ratified the Reconstruction Amendments in the years immediately following the end of the Civil War. Within that context, the drafters of the Reconstruction Amendments sought, among many things, to prevent Confederates from serving in public office following their unsuccessful rebellion against the Union.
Section 3 of the 14th Amendment says:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
With 15 commas, the meaning and application of Section 3 may confuse many readers. Constitutional law scholar Mark Graber provided a thorough discussion of each sentence fragment and clause in a recent article for The Conversation. In his summary of this section of the 14th Amendment, he says “These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials.”
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Settling the unsettled
The Supreme Court agreed to consider Trump’s appeal in early January 2024 because whether Trump is constitutionally qualified to serve as the president of the United States again is a critical question in an area of law that is not settled. While the Supreme Court considered some general cases of insurrection and rebellion following the Civil War, the Supreme Court has never faced this specific question regarding Section 3.
The Supreme Court will consider whether the Colorado Supreme Court erred in ordering the former president excluded from the 2024 presidential primary ballot.
But this specific question also presents a number of related legal questions that the Supreme Court could also decide, ranging from whether Section 3 applies to the presidency to whether Section 3 only prohibits a candidate from serving in office as opposed to appearing on any ballot. Then, of course, there is the factual issue as to whether the former president “engaged in an insurrection or rebellion” against the United States.
The Supreme Court will hear oral arguments in Trump v. Anderson on Feb. 8, 2024.
