To the surprise of no one connected with the case, or who just listened to the oral argument, the Supreme Court, in a per curiam opinion (i.e., unanimously), decided the case of Trump v. Anderson, holding that states have no power under the Constitution to enforce Section 3 of the 14th Amendment with respect to federal offices, in this case, the presidency.

Accordingly, absent congressional action—and there has been none—former President Trump may not be kept off the primary or general election ballot, not just in Colorado, but in any state or territory.

The argument in the case derives from Section 3 of the 14th Amendment, which provides:

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.

Following a five-day trial, the trial court found that Mr. Trump had “engaged in insurrection” within the meaning of Section 3, his having incited the breaching of the Capitol on January 6, 2021, in order to retain power, but that the President was not an officer of the United States as Section 3 describes. The Colorado Supreme Court reversed the latter finding and held that Trump would be disqualified from the state’s primary ballot.

The breadth of the Supreme Court’s holding today obviated any need to deal with the question of office-holding or any other detail, such as whether Trump had engaged in insurrection. Indeed, as four Justices who separately concurred with the per curiam opinion that they had joined warned, the Court’s opinion should not be read as broadly as its language might suggest, to insulate a broad variety of activities from the reach of Section 3.

Justice Barrett succinctly noted that she concurred with the holding that the states lack the power to enforce Section 3 against presidential candidates, leaving open the question of whether federal legislation is the exclusive means of enforcing Section 3. Justices Sotomayor, Kagan, and Jackson wrote a lengthier concurrence, criticizing the breadth to which the Court might have sought to preclude future challenges.

Full disclosure: Along with a group of former members of Congress, judges, and senior officials of past administrations, this writer was an amicus in support of the judgment of the Colorado Supreme Court. He is also an amicus in Trump v. United States, the presidential immunity case to be argued on April 22.  

This blog is intended to apprise litigators and other interested persons of the facts and potential effects of the decisions of the Supreme Court. Rehearsing the arguments of the parties is not necessary in cases like this one, where the ramifications are political in nature. If you are interested, the parties’ briefs in these cases are available on the Supreme Court’s website.  

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