The U.S. Supreme Court is hearing arguments in a case to decide whether former President Donald Trump may be kept off the ballot in Colorado | Photo by Jim Small, Arizona Mirror
Read more from our reporting on the Trump 14th Amendment case here.
In the weeks following the Colorado Supreme Court’s historic 4-3 decision barring former President Donald Trump from the 2024 ballot under a Civil War-era insurrection clause, the case was formally appealed to the U.S. Supreme Court twice, presenting the court’s justices with two different frameworks for its widely anticipated review.
The “questions presented” by the Colorado Republican Party in its Dec. 28 appeal asked the Supreme Court to weigh in on a series of specific legal issues raised by the case, including the meaning of language used in key portions of Section 3 of the 14th Amendment; whether the clause is “self-executing” or requires congressional action to be enforced; and whether the First Amendment’s right of association protects a political party’s ability to nominate the candidate of its choice on a presidential ballot.
By contrast, the petition for review filed by Trump’s attorneys two weeks later asked the Supreme Court a single, much shorter question.
“Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” asked Trump’s Jan. 3 appeal.
Two days later, the U.S. Supreme Court accepted Trump’s appeal, a choice that legal experts say will give the court wide latitude to weigh in on any and all aspects of the case when it hears oral arguments on Thursday and deliberates on a ruling in the weeks to come.
A “decisive” and “final” opinion, like the one sought by Trump and state elections officials on both sides of the aisle, will require justices to wade into legal territory with little settled precedent or relevant case law from the last century and a half. They will reckon with theories and counter-theories that were developed only within the last several years and have evolved rapidly during that span, and an active field of inquiry into the historical record that has unearthed new documentary evidence even as the Colorado case has proceeded through the courts.
The legal maneuvering that will culminate in Thursday’s high-stakes hearing began on the night of Jan. 6, 2021, hours after a pro-Trump mob stormed the U.S. Capitol building and disrupted congressional proceedings to certify the results of the 2020 presidential election. The attack followed weeks of efforts by Trump to spread debunked conspiracy theories alleging widespread election fraud and to pressure Congress into overturning President Joe Biden’s victory. Rioters began their assault shortly after a defiant election-denying speech delivered by Trump near the White House that day.
Trump was impeached a week later by the Democratic-led U.S. House of Representatives for “incitement of insurrection,” but acquitted after leaving office when all but a handful of Republican senators voted against his conviction. Last year, he was indicted by federal prosecutors who allege that his “pervasive and destabilizing lies” about the 2020 election “targeted a bedrock function of the United States federal government.” That case is still pending, as is a separate election interference case against Trump in Fulton County, Georgia.
In parallel with those criminal proceedings, several prominent liberal groups have brought civil actions seeking to bar Trump from the 2024 presidential ballot, arguing that he is disqualified from office under Section 3 of the 14th Amendment. The clause, ratified three years after the end of the Civil War, prohibits a person who took an oath to support the Constitution and then “engaged in insurrection” from holding office again.
Trump, who has remained the overwhelming favorite to win the 2024 Republican nomination since announcing in late 2022 that he would seek the presidency again, has denounced the challenges to his candidacy under Section 3 as undemocratic.
“If allowed to stand,” Trump’s attorneys wrote in their appeal, the Colorado Supreme Court’s ruling “will mark the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate.”
Attorneys for the Colorado plaintiffs, meanwhile, say the historic nature of such a ruling is more than justified by Trump’s unprecedented efforts to undermine the democratic process and the peaceful transfer of power.
“Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again,” they wrote in a Jan. 26 brief. “Nobody, not even a former President, is above the law.”
Here is a look at some of the key issues from the case likely to be debated at the U.S. Supreme Court.
‘Engage’ and ‘insurrection’
In his closing argument in Trump’s second Senate impeachment trial, Michael van der Veen, the former president’s defense lawyer, reminded lawmakers what was at issue.
“The question before us is not whether there was a violent insurrection of the Capitol,” van der Veen said. “On that point everyone agrees.”
That’s no longer the case. In court proceedings in Colorado, Trump’s legal team has challenged nearly every possible element of the case for his disqualification under Section 3, including the characterization of Jan. 6 as an “insurrection.”
“The events of Jan. 6 were more like a riot, and far less than a rebellion — and insurrection is far closer to rebellion than it is riot,” Scott Gessler, an attorney for Trump, told the Colorado Supreme Court during oral arguments on Dec. 6. “I think the duration (of an insurrection) has to be longer than three hours. I think the geographical scope has to be larger than one building.”
The text of Section 3 refers to individuals who have “previously taken an oath … to support the Constitution” and who “engaged in insurrection or rebellion against the same.” Proponents of Trump’s disqualification say the applicability of such language to the events of Jan. 6 is obvious.
“The most violent attack on our nation’s Capitol since the War of 1812 — an attack which obstructed the peaceful transfer of presidential power for the first time in American history — meets any plausible definition of ‘insurrection against the Constitution,’” the plaintiffs’ attorneys wrote in their brief.
Trump’s attorneys also contend that nothing the former president did in relation to the Jan. 6 attack meets the definition of “engaging” in insurrection.
“President Trump never told his supporters to enter the Capitol, either in his speech at the (White House) Ellipse or in any of his statements or communications before or during the events at the Capitol,” they wrote in their Jan. 3 Supreme Court appeal.
But Gerard Magliocca, an Indiana University law professor and scholar of 19th-century constitutional law, said during trial testimony in Denver that abundant contemporary evidence shows that Section 3 was enforced against even those who had acted in support of rebellion “by speech or by writing,” such as letters to the editor supporting the Confederacy.
Magliocca cited an 1867 opinion written by Attorney General Henry Stanbery on the Reconstruction Acts, congressional legislation containing language identical to portions of the 14th Amendment, which at the time had been approved by Congress and awaited ratification by the states. Stanbery’s brief held that “engaging in rebellion” meant any “‘overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose’ — namely, the insurrection,” Magliocca said.
In an influential paper first published in draft form last year, conservative legal scholars William Baude and Michael Stokes Paulsen sought to emphasize the totality of Trump’s actions in the weeks and months leading up to Jan. 6, which they characterized as an “attempt to overthrow constitutional election results and install or maintain himself in office, by force, by fraud or by attempted de facto political coup d’etat.”
“Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States, knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d’etat against the Constitution and its system of elections and overturn the results of the constitutional process, in order to maintain himself in office as President contrary to law,” wrote Baude and Paulsen. “If that itself constitutes ‘rebellion’ against the Constitution, Trump’s overall course of conduct disqualifies him under Section 3, even apart from the specific incitement to storm the Capitol on Jan. 6.”
Offices and officers
The first court ruling in the Colorado case came on Nov. 17, when Denver District Court Judge Sarah B. Wallace sided against the plaintiffs and ordered Trump to be placed on the ballot. In her 102-page ruling, Wallace held that Trump had indeed “engaged in insurrection” but rejected the case for Trump’s disqualification on grounds that had received scant attention in briefs and trial proceedings up to that point.
“It appears to the Court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the Presidential Oath,” wrote Wallace, who also held that evidence “suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified.”
The text of Section 3 refers to those who have taken an oath “as an officer of the United States,” and bars disqualified individuals from “hold(ing) any office, civil or military, under the United States.” According to a theory advanced by Trump’s attorneys and endorsed by Wallace in her ruling, the president is not an “officer of the United States,” and the presidency is not an “office … under the United States.”
The theory hinges on the absence of the presidency from the offices explicitly listed in the text of Section 3, as well as the claim that the oath it references — to “support” the Constitution — is distinct from the oath to “preserve, protect and defend” the Constitution prescribed for the president by Article 2.
In trial testimony, Magliocca said neither claim was supported by the historical record, citing debates in which the 14th Amendment’s proponents argued for the necessity of the amendment by raising the specter of ex-Confederate president Jefferson Davis winning election to the U.S. presidency. He and others have also pointed to extensive references by prominent Reconstruction-era politicians to the president as “executive officer of the United States” or an “official of the United States.”
The claim that the president is not an “officer of the United States” was first put forward by conservative law professors Josh Blackman and Seth Barrett Tillman in a 2021 paper, and has been taken up by other conservative legal commentators and Trump allies as the Section 3 challenges gathered steam. But despite the legal firepower behind the theory, it has drawn skepticism and even ridicule from many observers — including justices on the Colorado Supreme Court.
“President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” justices in the majority wrote in their Dec. 19 ruling. “Both results are inconsistent with the plain language and history of Section 3.”
Enforcement and ‘self-execution’
One of the three so-called Reconstruction Amendments, the 14th Amendment was ratified in 1868 and is better known for the civil-rights provisions contained in its first section, including the equal protection clause, which sought to severely restrict ex-Confederate states from abridging the rights of newly freed Black citizens.
Section 3 was aggressively enforced at the state and federal levels for a period of several years, Magliocca said during trial testimony. Federal prosecutors, military occupation officials, state courts and Congress itself used the measure to remove or bar from office large numbers of ex-Confederate legislators, judges and executive-branch officials.
In addition to laying out the conditions of disqualification, Section 3 includes a clause giving Congress the power, “by a vote of two-thirds of each House, (to) remove such disability.” Beginning in 1871, with zeal among northerners for harsh Reconstruction measures on the wane, Congress used this power to enact a series of broad amnesties for former rebels, removing the disqualification for all but a handful of the most senior ex-Confederates.
The fact that Section 3 grants Congress these amnesty powers — together with Section 5 of the amendment, which states that Congress “shall have power to enforce, by appropriate legislation, the provisions of this article” — is evidence of a “clear textual commitment of authority to Congress,” Trump’s attorneys wrote in their Jan. 3 brief. In a friend-of-the-court brief filed last month in support of Trump’s appeal, nearly 200 Republican members of Congress agreed, warning of the chaos that would result from leaving enforcement of Section 3 “to a patchwork of state officials and courts.”
Congress did, in fact, pass legislation enforcing key provisions of the 14th Amendment shortly after its passage. But much of the Enforcement Act of 1870, including a so-called quo warranto measure authorizing civil actions to remove disqualified officeholders, was repealed in 1948.
Proponents of Trump’s disqualification argue that Section 3’s ban is a “self-executing” measure, similar to many other constitutional provisions that remain in force with or without congressional enforcement. All three Reconstruction Amendments contain identical final sections granting Congress the “power to enforce this article.” Courts have repeatedly affirmed that other provisions in those amendments — including the 13th Amendment’s abolition of slavery and the 15th Amendment’s protections for universal male suffrage — are self-executing, the Colorado Supreme Court noted in its ruling.
“Interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results,” justices in the majority wrote. “If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation.”
But in a dissent from the court’s 4-3 majority opinion, Colorado Supreme Court Justice Carlos Samour sought to draw a distinction between the “affirmative, universal” rights established by the 13th and 15th amendments and the “negative policing mechanism” of the 14th Amendment, which he argued requires enforcement legislation to ensure due process. The court’s ruling, he argued, risked leading to “imprudent, unconstitutional and standardless system in which each state gets to adjudicate Section 3 disqualification cases on an ad hoc basis.”
“I cannot in good conscience join my colleagues in the majority in ruling that Section 3 is self-executing and that the expedited procedures in our Election Code afforded President Trump adequate due process of law,” Samour concluded.
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