On Feb. 8, 2024, the Supreme Court will hear arguments in a potentially historic case that could affect former President Donald Trump’s efforts to run for election this year. The case, Donald J. Trump v. Norma Anderson will turn on an interpretation of the Section 3 of the 14th Amendment of the U.S. Constitution known as the Disqualification Clause, and its language barring certain former elected and appointed officials from holding office if they took part in an insurrection.
In August 2023, a group of Colorado voters filed a lawsuit seeking to prevent President Trump from being allowed on the state’s 2024 presidential ballot, arguing that he is disqualified from running under the 14th Amendment due to his involvement in the January 6, 2021 events. A Colorado district court denied an attempt to bar President Trump from the election, but on appeal the Colorado Supreme Court ruled in a majority opinion on Dec. 19, 2023, that Section 3 applied to Trump’s actions on January 6, and that Trump could not run in the state’s upcoming primary election under the 14th Amendment’s Disqualification Clause.
The clause reads, “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.”
The Colorado Supreme Court Decision
The Colorado district court had found that Trump had taken part in an insurrection based on his actions, but Trump was not subject to the Disqualification Clause since the presidency was not an “office . . . under the United States” nor was the president “an officer of the United States” who had “previously taken an oath . . . to support the Constitution of the United States.”
The Colorado Supreme Court’s 4-3 decision reversed the district court’s ruling. “Section Three encompasses the office of the presidency and someone who has taken an oath as president. On this point, the district court committed reversible error,” said the majority’s per curiam opinion. The Colorado Supreme Court also said Congress did not need to enact legislation to put the Disqualification Clause into effect, and that the district court correctly concluded the events of January 6 were an insurrection that Trump “engaged” in through actions.
“We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the judges said. “We are also cognizant that we travel in uncharted territory, and that this case presents several issues of first impression.”
Among the dissenting opinions, Chief Justice Brian Boatright believed that the Colorado election code was not enacted to decide “whether a candidate engaged in insurrection.” Justice Carlos Samour wrote that there was no federal legislation enabling the enforcement of Section 3 and Trump had not received due process of law. Justice Maria Berkenkotter also thought that Colorado lawmakers had not granted powers to Colorado’s state courts to decide Section 3 cases.
The Colorado Supreme Court, however, stayed its decision until Jan. 4, 2024, pending an appeal to the U.S. Supreme Court.
Arguments At The Court
The U.S. Supreme Court accepted the case on Jan. 5, 2024, and limited it to one question: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” The Court then expedited the case for arguments on Feb. 8, 2024.
Trump’s attorneys raised several issues in their petition. “The question of eligibility to serve as President of the United States is properly reserved for Congress, not the state courts, to consider and decide. By considering the question of President Trump’s eligibility and barring him from the ballot, the Colorado Supreme Court arrogated Congress’ authority,” the petition stated.
Trump’s legal team also has argued that even if the Colorado State Supreme Court were able to consider Trump’s eligibility, the court was barred from such an action because the president was not “an officer of the United States;” and he did not take the oath of office specified in the 14th Amendment. Other reasons cited for the Colorado ruling’s dismissal were the lack of evidence that Trump took part in an insurrection, and that the Colorado Supreme Court ruling conflicted with the Constitution’s Electors Clause.
In a subsequent filing, Trump’s attorneys argued a point rejected by the Colorado Supreme Court, that legislation was required to enforce any ban under the 14th Amendment. “The state courts should have regarded congressional enforcement legislation as the exclusive means for enforcing Section 3, as Chief Justice Chase held in In re Griffin,” a circuit decision from 1869.
The most recent response from Anderson’s attorneys presented several other questions for the Court to consider, most prominently that Trump took part in an insurrection. “Trump identifies no plausible basis to evade disqualification under Section 3. His brief gives only perfunctory treatment to the central issue—whether he engaged in insurrection. He does not show why the detailed 150-paragraphs of trial court factual findings were somehow clear error, and he fails to even acknowledge (much less to rebut) the most damning evidence against him,” the brief argued.
The attorneys also rejected claims that Trump was not an officer of the United States, and that federal legislation was needed to enforce Section 3 of the 14th Amendment. “States have the power to enforce the U.S. Constitution, which is ‘supreme Law of the Land,’” they argued. “Trump cites no constitutional provision stripping states of the power to enforce constitutional qualifications for the presidency. To the contrary, states’ authority to do so falls squarely within their broad power to regulate presidential elections.”
More than 80 amicus curie, or friend-of-the-court briefs, were filed with the Court by the end of January. While many offered different legal theories or interpretations of the law, there was a general consensus that the Supreme Court should decide the case quickly.
“To hold that Trump’s eligibility cannot be determined until after election day would be disastrous,” Anderson’s team stated. “Trump’s own brief acknowledges as much, urging that the Court decide his qualifications now to avoid uncertainty about whether Congress might declare him ineligible after the election.”
Colorado’s presidential primary will be held on Tuesday, March 5, 2024.
Scott Bomboy is the editor in chief of the National Constitution Center.
