What to know about the Supreme Court arguments in the Trump 14th Amendment case

(WASHINGTON) — The U.S. Supreme Court on Thursday will take up a historic case that could decide whether Donald Trump is ineligible for the 2024 ballot under Section 3 of the 14th Amendment.

The provision, ratified after the Civil War to keep insurrectionists out of government, has rarely been invoked over the past 150 years and never before applied to a candidate for president.

It reads: “No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

Only Congress, it adds, can remove the disqualification by two-thirds vote of both the House and Senate. It does not spell out who gets to decide when someone has “engaged in insurrection” or how.

Last year, a group of four GOP and two unaffiliated voters sued Colorado’s secretary of state to keep Trump off the state’s GOP primary ballot, citing his efforts to overturn the results of the 2020 presidential election. The Colorado Supreme Court ruled that Trump’s conduct amounted to engaging in “insurrection” in violation of Section 3.

Trump is now appealing that decision to the nation’s high court.

Here’s how it’s expected each side will present their respective arguments to the justices:

Trump’s case: Section 3 does not apply to him

Section 3 refers to an “officer of the United States” and Trump was not one. There are two oaths in the Constitution and he took the presidential oath, which is different. Presidents appoint “officers” of the U.S. The president is not explicitly mentioned in the amendment.

Trump did not “engage in insurrection.” He has not been charged with acts of insurrection much less convicted of a crime. He “repeatedly called for peace, patriotism and law and order.” A failure to act on Jan. 6, as some have alleged, is not the same as engaging in the conduct.

Only Congress can enforce Section 3. The law doesn’t spell out who decides when someone has “engaged in insurrection.” Each state can’t veto candidates based on their own assessments.

Section 3 creates a prohibition from “holding office” — not running for office. States can’t decide new upfront qualifications for being president.

The Constitution’s electors clause says legislatures, not courts, should govern elections and evaluate candidate qualifications. Colorado law doesn’t require the secretary of state to do so.

Colorado courts violated state law. They did not hold a hearing within five days of the complaint against Trump as required (it was 54 days). The court did not deliver findings of fact within 48 hours as required (it was 12 days). Reliance on testimony of a sociology professor who said Trump had spoken in “coded” language was hearsay. Voters who sued the Colorado secretary of state don’t have standing because the secretary of state has no authority to vet candidate eligibility under state law.

Colorado voters’ case: Trump incited an insurrection and Section 3 applies

Trump’s words and deeds “were the factual cause of and a substantial contributing factor to the attack.” After a five-day hearing, the trial court found Trump “intentionally organized and incited” insurrection. Those findings are entitled substantial deference. Even though Trump himself wasn’t violent, there is precedent for incitement as “engagement.” The First Amendment doesn’t protect incitement.

The presidency is an “office of the United States” as covered by Section 3. The Constitution refers to the presidency as an “office” 20 times. The “of the U.S.” phrase is meant to distinguish a position from a state. Trump is splitting hairs.

States have authority under the electors clause to run presidential elections. State officials can make subjective determinations about eligibility of candidates. A U.S. 10th Circuit Court of Appeals decision in 2012 from then judge and now Justice Neil Gorsuch said states could exclude a naturalized citizen from a presidential ballot because he was “constitutionally prohibited.” States also have power to decide presidential electors on their own terms.

Trump forfeited an electors clause challenge because he didn’t raise it in earlier proceedings. The U.S. Supreme Court should defer to state court interpretation of state law. As for the state court delays — in violation of legally mandated deadlines for ballot challenges — Trump had asked for more time in the case.

History of Section 3. The provision of the 14th Amendment was enacted as a measure of self-defense, targeting leaders of the rebellion. It deprives them of qualification for office but nothing else. It was immediately enforced by state courts in 1868.

Notable amici (friend of the court) filings

The National Republican Senatorial Campaign Committee argues Colorado altered the qualifications for president and interfered with Congress’ sole prerogative to remove any Section 3 disqualification from a candidate. In effect, what Colorado has done is require that Congress address any alleged Section 3 disqualification before voters pick a candidate – but that is an error: Congress gets to decide when, and could do so after the election.

Colorado violates First Amendment rights of voters and political parties. It takes away a choice. There is no precedent for denying a candidate primary ballot access. The decision negates the possibility that between Election Day and Inauguration Day, a two-thirds vote of each chamber of Congress could cure Trump’s eligibility.

Colorado ignores precedent of “ineligible” candidates on the ballot becoming eligible by inauguration day when they “hold” office. See: Joe Biden running for Senate and winning at age 29 … turning 30 just before he was sworn in. Or, when Congress granted amnesty en masse to some former Confederates in 1867 who’d already won elections but not yet been seated.

The state court committed a clear error by directing the secretary of state to not list Trump on the ballot. In so doing, the court extended the Section 3 disability beyond “being” president to running for president. States cannot preemptively exclude candidates, interfering with Congress’ authority to decide whether or not to cure a Section 3 deficiency.

179 GOP members of Congress

The Colorado Supreme Court’s decision infringes on Congress’ powers. In part, they argue, because by allowing the enforcement of Section 3 without congressional authorization, candidates could face “abuse by state officials.” Colorado is also wrong because it deprives Congress the chance to remove a Section 3 “disability.”

Colorado’s definition of “engage in insurrection” is too malleable and expansive. The state court harbors a view that will lead to “widespread abuse of Section 3 against political opponents.”

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