The Supreme Court heard oral arguments today in Trump v. Anderson, assessing whether Section 3 of the 14th Amendment disqualifies the former president from holding office. That section provides that no one “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 under any State,” if that person previously swore “as a member of Congress, or as an officer of the United States” to support the Constitution but then “engaged in insurrection or rebellion” against the federal government.
During oral arguments, justices across the ideological spectrum expressed concern for upholding the Colorado Supreme Court’s decision to remove Trump off the state’s ballot, both because of the effect that such a decision would have on the rest of the country and because of the difficulty courts could have in reviewing similar decisions.
Colorado’s Supreme Court determined in December that Trump was ineligible to be president under Section 3 and should not be listed on the state’s primary ballot. In short, the court’s ruling turned on Trump being an “officer” of the United States and that he indeed “engaged” in insurrection against the federal government during the January 6 riots.
But Jonathan Mitchell, Trump’s attorney, argued that states cannot use Section 3 to bar Trump from running for office. He relied on Griffin’s Case, a circuit court ruling—which is not binding on the Supreme Court. There, former Chief Justice Salmon Chase determined that Section 3 can be enforced only through laws passed by Congress. Put another way, Chase ruled that Section 3 was not self-executing; Congress must pass laws to implement it.
While Griffin’s Case is not binding on the Supreme Court, Justice Kavanaugh cited 155-year history where no state attempted to disqualify federal officers from the ballot under Section 3 precisely because of Griffin’s Case.
Yet Jason Murray, on behalf of Colorado voters, pushed back arguing that states had not attempted to disqualify federal officers under Section 3 because there was no need to do so. In other words, Section 3 had not been invoked because the country never previously experienced anything like the January 6 attacks. “We are here because . . . the [January 6] attack was incited by a sitting president of the United States . . .” Murray explained.
The justices pressed hard the question of enforcement. Justice Elana Kagan questioned why a single state like Colorado should “decide who gets to be president,” highlighting that the issue sounded “awfully national” rather than an issue for an individual state to decide.
Justice Samuel Alito expressed similar concerns, but focused on how the Supreme Court would determine whether a candidate engaged in insurrection. He wondered, for example, what rules of evidence would apply, who would bear the burden to show that a candidate was an insurrectionist, and how such a trial would be conducted.
Still more, Chief Justice John Roberts said upholding Colorado’s decision could lead to efforts to disqualify the Democratic candidate for president, thus highlighting the potentially “cascading” effect of upholding Colorado’s decision.
Later, Colorado’s Solicitor General Shannon Stevenson tried to quell the justices fears. She called for “faith in our system” and in the “institutions in place to handle those types of allegations.”
At bottom, the justices seemed wary of upholding Colorado’s decision. Only time will tell what their eventual conclusion will be, but today’s oral argument reveals that the justices are unlikely to kick Trump off the ballot.
Law Matters 