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[This post is co-authored with Professor Seth Barrett Tillman]
Trump v. Anderson is scheduled to be argued on February 8, 2024. The deadline for topside briefs was yesterday, January 18, 2024. President Trump filed his merits brief. And more than forty amicus briefs were filed. Most of them were filed in support of Petitioner, but a handful were filed in support of neither party. In this post, we will provide an overview of about thirty of the amicus briefs. And we will do so in a fairly expeditious fashion: by reproducing the tables of contents. A good tip for law students: skimming the TOC should provide a precise overview of how a brief will proceed. Of these thirty-odd briefs, about a dozen expressly argue that the President is not an "Officer of the United States." We list the amicus brief in the order in which they were filed.
I. The president is not an "officer of the United States"
II. President Trump did not "engage in insurrection"
III. Section 3 should be enforced only through Congress's chosen methods of enforcement
IV. Section 3 cannot be used to deny President Trump access to the ballot
V. The Colorado Supreme Court violated the Electors Clause and the Colorado Election Code
Filed on 1/9/24
I. Plaintiffs' Requested Relief is Barred by Griffin's Case (1869)
A. Griffin's Case is persuasive authority that settled the meaning of Section 3
B. Decisions from Louisiana and North Carolina are consistent with Griffin's Case
C. The Colorado Supreme Court engaged in improper speculation about Chief Justice Chase's motives
D. Griffin's Case is consistent with the deeply rooted sword-shield dichotomy in federal courts' jurisprudence
II. In 1788, 1868, and today, "Officer of the United States" in the Constitution extends exclusively to appointed positions and not to elected positions
A. In the Constitution of 1788, the President did not hold an "Office … under the United States"
B. In the Constitution of 1788, the President was not an "Officer of the United States"
C. In 1868, the President was not an "Officer of the United States" in the Constitution
D. There is a tradition of authority from the Judicial and Executive Branches demonstrating that the President is not an "Officer of the United States"
Filed on 1/11/24
I. THE COLORADO SUPREME COURT'S BROAD INTERPRETATION OF SECTION THREE WOULD ENABLE PARTISAN OFFICIALS TO DISQUALIFY POLITICAL OPPONENTS BY UNILATERALLY DECLARING THEM INSURRECTIONISTS
II. THERE IS NO PRIVATE CAUSE OF ACTION TO ENFORCE THE DISQUALIFICATION CLAUSE
A. The text of the Fourteenth Amendment suggests Section Three is not self-executing
B. History, case law, and congressional action all demonstrate that Section Three is not self-executing
C. Construing Section Three as self-executing also contradicts the intent and purpose of the Fourteenth Amendment as a tool to increase federal power
D. There is no conflict between the relief requested by Donald J. Trump and Hassan v. Colorado
III. THEN-PRESIDENT TRUMP DID NOT INCITE JANUARY 6TH PROTESTORS TO ENGAGE IN INSURRECTION
I. President Trump's opponents have resorted to antidemocratic methods because they doubt that they can beat him in a fair election.
A. In judicial silence, President Trump's political opponents have sensed opportunity.
B. The decision below incentivizes inconsistent partisan determination of Section 3 ballot access decisions.
C. Adopting the Colorado Supreme Court's theory will require this Court to adjudicate political questions
II. The President is not an "officer of the United States" within the meaning of the Fourteenth Amendment
A. Neither the drafters of the Fourteenth Amendment nor this Court have addressed whether the Disqualification Provision of Section 3 applies to former Presidents.
B. The Constitution's plain text demonstrates that the President is not an "officer."
C. Traditional canons of construction support the plain reading of Section 3's text.
D. Structural considerations further support the President's unique constitutional status
Filed on 1/15/24
The presidency and vice presidency were deliberately omitted from the list of barred offices because in 1868 there was no danger that voters with unreconstructed rebel sentiments could pick winners in a nation-wide election, while there clearly was such a danger in elections confined to States that had previously seceded
A. In the national electorate, voters with Unionist sentiments far outnumbered those with Confederate sentiments, and it would therefore be impossible for the latter to pick winners in an election for president and vice president
B. As an additional safeguard, Section 3 explicitly barred any disqualified person from serving as "elector of President or Vice-President"
Filed on 1/16/24
I. Section Three's text is ambiguous about inclusion of the President.
A. Around 1868, "civil officer under the United States" was not understood to include apex political positions.
B. Rules of construction suggest Section Three excludes the apex office of the President.
II. The ratifying debates did not resolve the inherent ambiguity of Section Three.
III. Reading Section Three as excluding the office of the President is textually and historically reasonable.
A. Though prior drafts of Section 3 enumerated the office of the President, the final draft omitted this language.
B. The Joint Committee on Reconstruction ignored the office of the President and instead focused on Congress and the electoral college.
C. The final draft of Section Three also focused on Congress and the electoral college, but expanded the text to include lower federal and state offices.
D. Section Three secured a sufficiently trustworthy electoral college.
I. The Continued Legal Viability of Section 3 Is Suspect
II. Section 3 Does Not Apply to Former President Donald Trump.
III. No State Court Has the Constitutional Authority to Overrule the Judgment of the Senate that Acquitted President Trump of "Incitement of Insurrection."
IV. Section 3 Is Not Self-Executing and No Court Has the Authority to Enforce Section 3 Because Congress Has Not Passed a Federal Law Providing for Enforcement.
V. States Cannot Add Qualification Beyond What the Constitution Sets Forth.
Filed on 1/17/24
I. THE COLORADO ELECTION CODE DOES NOT VEST COLORADO COURTS WITH JURISDICTION TO ADJUDICATE QUESTIONS RELATING TO SECTION 3 OF THE FOURTEENTH AMENDMENT
II. THE PLAIN TEXT OF SECTION 3 OF THE FOURTEENTH AMENDMENT DOES NOT APPLY TO THE PRESIDENT
A. The President is not an "Officer of the United States"
B. The Colorado Supreme Court's definition of an "Officer of the United States" contradicts the Framer's and this Court's understanding of such phrase
III. CONGRESS REMOVED ANY ELECTORAL DISABILITY VIA THE 1872 AND 1898 AMNESTY ACTS
I. The President Is Not an "Officer of the United States" Nor Does He Hold an "Office under the United States"
a. The "Officers of the United States" Are Appointed Positions in the Executive and Judicial Branches, not the President.
b. An "Office Under the United States" Refers to Appointed Positions in the Executive, Judicial, and Legislative Branches, Not the Office of the President.
II. Section Three of the Fourteenth Amendment Constitutionalized the Second Confiscation Act, Which Used The Same Meaning of "Insurrection" Used In the Militia Act
III. Colorado Cannot Enforce Section Three of the Fourteenth Amendment Against Federal Officials
I. The Constitution's Text Demonstrates That The President Is Not An "Officer Of The United States"
II. Section 3's Legislative History Demonstrates The President Is Not An "Officer Of The United States"
A. Section 3's Legislative History
B. The Colorado Supreme Court's Erroneous Analysis Of § 3's Legislative History
III. Case Law Does Not Support The President Being An "Officer Of The United States"
IV. Attorney General Opinions Do Not Support The President Being An "Officer Of The United States"
I. A Former President is not within the jurisdictional scope of Section 3 of the Fourteenth Amendment
II. Section 3 of the Fourteenth Amendment is Not Judicially Enforceable Without Implementing Legislation
III. Section 3's Offense Element Requires Congressional Legislation
Filed on 1/18/24
1. The Colorado Supreme Court Wrongfully Decided A Non-Justiciable Political Question
a. Determining The Requirements For The Presidency Is Exclusively Within The Purview Of The Legislature
i. The Plain Language Of Section Three Confirms That Congress Alone Has The Power To Determine If A Person Is Disqualified From Holding Office Under Section Three
ii. A Basic Understanding Of The Electoral Process Reinforces Congress's Role in Guarding the Presidency Against Unqualified Candidates
b. The Contours of Disqualification under Section Three are Murky and Give no Manageable Standards for Courts to Apply.
2. The Colorado Supreme Court's Decision, If Allowed To Stand, Will Create Political Chaos
a. States Will Continue to Unevenly Apply Section Three to Former President Trump
b. If the Majority Opinion Stands, Section Three Will Be Ripe for Leveraging as a Tool to Strike Political Opponents from the Ballot
i. Representative Tlaib
i. President Biden and Vice President Harris
iii. Governor Whitmer
iv. The Potential Application of Section Three is Endless
I. Under Mathews v. Eldridge and Its Progeny, Colorado's Civil Proceeding Was Not an Appropriate Hearing Given the Demands of the Due Process Clause
A. The Interests at Stake in this Case Include the Fundamental Constitutional Rights of Millions of Party Members and Voters, and the National Interest in Governmental Legitimacy
B. The Risk is High that Arbitrary and Erroneous Outcomes from Various State Proceedings Will Impair These Interests
C. The State of Colorado Has No Important Interest in Employing Its Own Statutory Procedures to Disqualify President Trump from The State Ballot
II. If the Decision of the Colorado Supreme Court is Allowed to Stand, Federal Presidential Elections Will Routinely Involve Section 3 Challenges
I. Section Three's prohibition against having "engaged in insurrection or rebellion" requires a direct, overt act of insurrection, not incitement through speech.
A. To "engage" requires more than mere words.
1. The text's omission of incitement is weighty evidence that "engage in insurrection or rebellion" does not cover incitement.
2. Plainly disjunctive language puts a wall between the meaning of "engaging" and the wholly separate inchoate acts of aiding or comforting.
B. "Insurrectionists" or "rebels" are not, without more, "enemies."
1. An "enemy" is an enemy nation.
2. Civil War prosecution amplifies the conclusion that "aid or comfort" to nonenemy insurrectionists is not covered by Section Three.
3. Potential overlap of "enemies" and "insurrectionists" does not mean per se overlap.
4. Casual construction of "enemies" leads to dangerous outcomes.
C. The second opinion from Attorney General Stanbery fits well within this construction.
II. Even if Section Three's use of "engaged" included incitement, Brandenburg applies and the Ellipse Speech is constitutionally protected.
A. Under the Brandenburg test, only the Ellipse Speech's words may be analyzed to determine whether they were directed to incite or produce imminent lawless action.
B. President Trump's speech was not directed to inciting or producing imminent lawless action.
I. The Present Controversy is not Ripe for Adjudication
A. Political Parties' Choices of Their Candidates for National Offices Implicate the Right to Free Association Under the First Amendment
B. At This Stage, This Question is Not Ripe
II. The Colorado Supreme Court Erred in its Interpretation of the Fourteenth Amendment of the United States Constitution
A. The Colorado Supreme Court may not Independently Determine Qualifications for the President of the United States
B. Section Three of the Fourteenth Amendment is Not Self Executing
C. Congress has Used its Implementing Power Under Section Five of the Fourteenth Amendment, Foreclosing the Analysis of the Colorado Supreme Court
I. The Colorado Supreme Court's Decision Encroaches on Congress's Express Powers
A. Federal Implementing Legislation Is Required to Enforce Section 3
B. De-Balloting a Candidate Effectively Denies Congress Its Power to Remove a Section 3 Disability
C. Section 3 Determinations Fall Within the Political Question Doctrine Because They Are Reserved for Congress
II. Section 3 Does Not Apply to Former President Trump
III. The Colorado Supreme Court's Decision Lacks Neutral Principles and Will Lead to Widespread De-Balloting of Political Opponents
A. The Decision Below Failed to Meaningfully Confine "Engaging in Insurrection"
B. A Lengthy List of Partisan Grievances Could Be Labeled As "Engaging in Insurrection"
I. THE COLORADO SUPREME COURT ERRED BY MODIFYING THE QUALIFICATIONS FOR THE OFFICE OF PRESIDENT
A. The Constitution Prohibits States From Altering The Qualifications For The Office Of President
B. Section 3 Imposes A Qualification On Holding Office, Not Running For Office
C. The Colorado Supreme Court Improperly Altered Section 3 And The Qualifications For The Office Of President
D. The Colorado Supreme Court Misconstrued The Constitution And This Court's Precedents
II. THE COLORADO SUPREME COURT VIOLATED THE FIRST AMENDMENT
I. Courts are not the appropriate forum for this dispute.
A. Section Three does not apply until after an election.
B. Section Three did not give state officials power to frustrate the federal government or national will.
C. This Court has cautioned against state control over similar election issues.
D. Congress has not authorized pre-election enforcement of Section Three in state courts.
II. Primary ballot cleansing violates National Republican Amici's First Amendment rights.
III. Section Three does not apply to former Presidents.
A. Presidents do not take an oath "to support" the Constitution.
B. The President is not an "officer of the United States" because that phrase never includes the President in the Constitution.
IV. Section Three does not cover holding the presidency
I. The Colorado Courts Erred in Their Application of Colorado Rule of Evidence 803(8).
A. Standard of Review
B. The Beech-Barry Four Part Analysis
1. Colorado's Findings
2. As a matter of law, the Report does not bear the requisite indicia of trustworthiness and reliability to render it an admissible "public record" per Rule 803(8)
a. While the Colorado Courts Rightly Recognized the Committee's Report Suffered from Potential "Motivation Problems," They Minimized Those Problems and Reached the Wrong Conclusion
I. Section 3 cannot be used to disqualify a person from holding office unless Congress first acts
II. Without more direction from Congress, courts cannot say what constitutes "insurrection" under Section 3
III. Allowing state courts to apply Section 3 to Presidents without congressional action would damage our system of government
I. THIS CASE DOES NOT IMPLICATE THORNTON.
II. THORNTON IS EGREGIOUSLY WRONG AND SHOULD NOT BE REAFFIRMED OR EXTENDED.
I. Section Three Does Not Empower Secretaries of State to Disqualify Candidates for Federal Office
A. The Plain Text Does Not Empower Secretaries of State to Disqualify Presidential Candidates.
B. Historical Precedent Confirms That Section Three Does Not Give Secretaries of State An Inherent Disqualification Power Under The Constitution.
II. Even if the Court Holds That Section Three Is Self-Executing, It Should Nevertheless Avoid Any Construction That Empowers Secretaries of State To Exercise An Inherent Disqualification Power Because of the Obvious Practical Problems That Would Flow From Such A Decision
I.THE ELECTION CALENDAR REQUIRES THIS COURT TO ADDRESS THE FOURTEENTH AMENDMENT AND INSURRECTION ISSUESRATHER THAN OPINE ON THE ROLE OF CONGRESS OR MATTERS OF COLORADO LAW
A.No Aspect of Article II, Sec. 1, cl. 5 Eligibility Is Now before the Court
B.A Resolution of the Colorado Law IssuesWill Not Meet the Urgent Need for aDecision on Article 3
C.Primary and General Elections
II.SECTION 3 OF THE FOURTEENTH AMENDMENT DOES NOT APPLY TO PRESIDENT TRUMP
A.The Plain Text
I. Section 3 Must Be Strictly Construed
A. Strict construction is warranted because Section 3 is penal
i. Section 3 is penal
ii. Penal provisions are strictly construed in favor of individuals
B. Strict construction is necessary to avoid interfering with Trump's First Amendment rights
II. Section 3 Is Not Applicable To Trump
A. Section 3 does not cover the President of the United States
B. Trump did not engage in an insurrection or rebellion
I. The Text of Section 3 of the Fourteenth Amendment and Precedent Under It Indicate a Demonstrable Constitutional Commitment to Congress Alone to Set the Procedures and Standards for Ballot Disqualification
II. The Inherent Interests in National Uniformity, When Dealing With the Application of Federal Law to the President, Require a Uniform National Standard and Uniform National Procedures to Address Qualifications Under Federal Law for Presidential Ballot Access and Office Holding
III. Varying State Definitions of What Constitutes an "Insurrection" or "Rebellion" Against the United States Are Tantamount to Varying State Definitions and Control Over the Federal Government Which is Constitutionally Impermissible
IV. The Disastrous Potential For a Single State Judge to Trigger Non-Mutual Offensive Collateral Estoppel Against a Nation-Wide Presidential Candidacy is Inherently Contrary to Our Democratic Values and Counsels Reversal of the Decision of the Colorado Supreme Court
I. President Trump Has Not "Engaged" in Any Overt Acts Amounting to Insurrection
A. The Court Below Ignored The Plain Meaning of The Word "Engaged" as Originally Understood
B. The Plain Meaning of The Word "Engaged" as Originally Understood Excluded Mere Rhetoric
C. Case Law Usage of The Word "Engaged" and Its Variations From the Appropriate Historical Period Meant that Overt Acts Beyond Mere Words Were Required
D. The Second Confiscation Act Specified "Engage" and "Incite" as Separate Acts E. The Word "Engage" in the War Clause Requires a State's Direct Prosecution of War
II. Disqualification Under the Insurrection Clause Without An Overt Act Can Only Occur in Instances In Which an Individual Gave "Aid and Comfort" To The "Enemies" of the United States
I. Section 3 Does Not Disqualify Presidential Candidates from the Ballot.
A. Section 3's text and structure show that candidates for President are excluded from its reach.
B. Prior drafts of Section 3 confirm that excluding the President was deliberate.
C. Criticism from the other side of the debate cannot withstand scrutiny.
II. Section 3 Requires Enabling Legislation Under Section 5, Such as 18 U.S.C. § 2383.
19 A. Article II's presidential qualifications do nothing to suggest that Section 3 is self-executing.
B. The Fourteenth Amendment contains both provisions that are self-executing and those that require Congress to legislate.
C. Section 3's history reveals that it requires enabling legislation.
D. Congress enacted relevant legislation in 18 U.S.C. § 2383, but President Trump is not accused of violating that statute.
III. It Would Be Highly Imprudent to Interpret Section 3 in Any Way that Empowers Partisan Officials to Unilaterally Disqualify Political Opponents from Public Office.
I. The President Is Not an "Officer of the United States"
II. Former President Trump Did Not Commit Either Act Described In Section 3
A. This Court should give effect to section 3's two distinct disqualification predicates
B. President Trump did not commit either of Section 3's disqualification offenses 1. President Trump did not engage in insurrection or rebellion against the United States
2. Former President Trump did not give aid or comfort to the enemies of the United States
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