SCOTUS Is Troubled by the Claim That States Can Disqualify Trump From the Election As an Insurrectionist

Most of the justices are clearly inclined to reject a Colorado Supreme Court decision asserting that power under Section 3 of the 14th Amendment.

Judging from last week's oral arguments in Trump v. Anderson, the Supreme Court will reject the claim that he is disqualified from running for president under Section 3 of the 14th Amendment because he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. The only real question is which of several possible rationales will attract a majority of the justices.

Section 3, which was aimed at preventing former Confederates from returning to public office after the Civil War, 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 under 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."

In December, the Colorado Supreme Court ruled that Section 3 barred Trump from that state's presidential primary ballot. But the issue of how to interpret and apply Section 3 in the context of a presidential election raises a bunch of questions that courts had not previously addressed. The one that attracted the most attention during Thursday's oral arguments was whether states have the authority to enforce Section 3.

Justices Clarence Thomas and Brett Kavanaugh emphasized the lack of historical evidence that states can independently apply Section 3. Jason Murray, the lawyer representing the Colorado voters who challenged Trump's inclusion on the ballot, said he could offer just one example: In 1868, John H. Christy was elected as a Georgia congressman, but Rufus Bullock, the state's Republican governor, concluded that Christy was disqualified under Section 3 and instead certified his opponent, John Wimpy, as the winner. A House committee later found that Wimpy also was disqualified because he had served in the Confederate army, and neither man was seated.

Murray said "it's not surprising that there are few examples" because the election process was different back then: Since voters either cast a ballot for a party or wrote in a candidate's name, "there wouldn't have been a process for determining before an election whether a candidate was qualified." But Thomas was unsatisfied with that explanation. Since "there were a plethora of Confederates still around" in the 1870s, he said, there should "at least be a few examples of national candidates being disqualified if your reading is correct."

Kavanaugh echoed Thomas' point, noting that the power Colorado is asserting had been "dormant for 155 years." The year after the 14th Amendment was ratified, he noted, Chief Justice Salmon P. Chase, acting as the circuit justice for Virginia, ruled that Section 3 had to be implemented via the congressional action authorized by Section 5 of the 14th Amendment. That means "Congress has the authority here, not the states," Kavanaugh said. And in 1870, Congress approved the Enforcement Act, which aimed to implement the 14th Amendment by protecting voting rights. "There's no history contrary in that period," Kavanaugh said, and "as Justice Thomas pointed out, there's no history contrary in all the years leading up to this of states exercising such authority." That suggests, he said, "a settled understanding" that Chase "was essentially right."

Chief Justice John Roberts noted that "the whole point of the 14th Amendment was to restrict state power." The amendment says states may not "abridge the privileges or immunities of citizens," "deprive any person of life, liberty, or property, without due process of law," or deny anyone "the equal protection of the laws." And Section 5 says "Congress shall have the power to enforce this article by appropriate legislation." Given the wording and aims of the 14th Amendment, Roberts said, "wouldn't that be the last place that you'd look for authorization for the states, including Confederate states" to regulate "the presidential election process" by deciding which candidates are disqualified under Section 3? That position, he suggested, is "at war with the whole thrust of the 14th Amendment and very ahistorical."

Justice Elena Kagan also was uncomfortable with the idea that "a single state should decide who gets to be president of the United States." The question of "whether a former president is disqualified for insurrection to be president again," she said, "sounds awfully national to me," which suggests that "whatever means there are to enforce it" would "have to be federal, national means."

Justice Amy Coney Barrett shared Kagan's concern. "You say that we have to review Colorado's factual record with 'clear error' as the standard of review," she told Murray. "So we would be stuck….We're stuck with that record." The deference that approach would require, Barrett said, underlines "this point that Justice Kagan was making" that "it just doesn't seem like a state call."

Similarly, Justice Samuel Alito worried about "a cascading effect" in which "the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country." Roberts raised the possibility that "a goodly number of states" might decide to reject Democratic as well as Republican candidates, meaning that "it'll come down to just a handful of states that are going to decide the presidential election," which is "a pretty daunting consequence."

Justice Ketanji Brown Jackson wondered whether the presidency qualifies as "an office…under the United States" within the meaning of Section 3. In the part of Section 3 that refers to offices from which insurrectionists are barred, Justice Ketanji Brown Jackson noted, "you have a list, and 'president' is not on it." She suggested it was unlikely that the Framers would have "smuggled" that "high and significant and important office" via a "catch-all phrase." Regarding the question of which prior office holders are covered by Section 3, Justice Neil Gorsuch noted that Article II charges the president with commissioning "all the Officers of the United States," which suggests that category does not include the president.*

By contrast, the question of whether the January 6 riot qualified as an "insurrection" and whether Trump "engaged in" it barely came up. "For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence," Jonathan Mitchell, the lawyer representing Trump, said in response to a question from Jackson. "This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection as that term is used in Section 3."

Murray, by contrast, opened his argument by placing Trump at the center of an insurrection. "We are here because, for the first time since the War of 1812, our nation's Capitol came under violent assault," he said. "For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office."

But that was pretty much it on the subject, aside from Kavanaugh's allusion to the fact that Trump, despite facing numerous criminal charges, was never charged with insurrection under 18 USC 2383. In addition to a possible prison sentence of up to 10 years, a conviction under that statute makes the defendant "incapable of holding any office under the United States." If the concern is that "insurrectionists should not be able to hold federal office," Kavanaugh told Murray, "there is a tool to ensure that that does not happen—namely, federal prosecution of insurrectionists."

*CORRECTION: This paragraph has been revised to clarify the parts of Section 3 that Jackson and Gorsuch were discussing.