On Friday, the United Staes Supreme Court decided to grant President Trump’s Petition for Certiorari in Trump vs. Anderson. However, it took no action on the companion Petition for Certiorari filed by the Colorado Republican Party in Colorado State Republican Central Committee v. Anderson. Before turning to the issues raised in this case, there are two things to note about the Supreme Court order granting review and the petitions filed.
First, in granting Trump’s petition, the Supreme Court implicitly recognized the necessity to resolve this issue quickly. The briefs of Trump and his enablers in the Republican Party (and related organizations) are due on January 18, less than two weeks after the order granting review (as opposed to the usual 45 days). The briefs of Trump’s challengers and the Colorado election official who are in the middle of this case are due thirteen days later on January 31 (along with any outside brief from individuals who want to support Democracy) with any reply briefs due five days later on February 5. This contrast to the normal deadlines of 45 days for petitioner’s brief with respondent’s brief due 30 days later and the reply brief an additional 35 days later. Additionally, the case will be argued on February 8 which is a special setting in the middle of what would otherwise have been the Supreme Court’s winter break.
Second, the Supreme Court did not rewrite Trump’s question presented. Typically, the question prsented in a petition for certiorari is narrowly focused on one legal issue. For example, did the lower court err in finding that the potential for the metabolizing of blood alcohol content is an automatic exigent circumstance permitting law enforcement officers to conduct a warrantless blood draw? If there are multiple issues in a case, the petition will present multiple questions on which the Supreme Court can pick and choose which issues will be considered at the time that the petition is granted. For example, the Colorado Republican Party presented three issues: 1) does Section 3 of the Fourteenth Amendment apply to the President; 2) is Section 3 self-executing; and 3) does disqualifying a candidate violate the First Amendment rights of political parties. By contrast, the Trump Petition, after noting the ruling (that his actions and the office of President fell within the restrictions of Section) simply asks whether the Colorado Supreme Court erred by excluding him from the ballot. In other words, unlike the usual question which identifies a specific legal error in the ruling, the Supreme Court appears to be allowing the consideration of any potential theory on why the Colorado Supreme Court erred.
And there are a lot of theories floating out there. It is unclear (and will not be clear until the Supreme Court rules) whether the current justices (other than Justice Thomas who should recuse himself due to his wife’s role as a participant in the events leading up to January 6) really have any interest in protecting President Trump. Five of the justices appear to be more concerned with protecting conserve interests and could readily conclude that those goals are best served by keeping Trump from getting the Republican nomination (which could be accomplished by a quick opinion affirming the decision of Colorado).
There seems to be several strands of arguments — both in Trump’s petition and in the various cases which have held that challenges to Trump may not go forward at the present time — for why Colorado lacked the authority to disqualify Trump and two major arguments that go to the merits of whether Trump is disqualified.
The first claim is that disqualification under Section 3 is a political question. This argument has four fundamental flaws. First, in the 1860s, shortly after Section 3 took effect, there were several cases in the Supreme Courts of the former Confederate States applying Section 3. All of these cases assumed that, although government officials made the first call on whether a particular person was disqualified, those executive branch decisions were subject to judicial review. Second, making Section 3 a political question would essentially give Congress (for the office of President) and state and local election officials an unreviewable power to nullify an election by saying, after the election, that a candidate was disqualified by Section 3. In essence, the power to elect the President would shift from the voters and the Electoral College to Congress. Third, Section 3 seems to treat disqualfication as a fact and requires a two-thirds vote of both houses of Congress to waive that disqualification. Making Section 3 a political question would allow a simple majority of either house (or maybe even a minority of the Senate if the issue of disqualification is not a privileged issue exempt from a filibuster) to waive the disqualification. Fourth, as a poltical question, the issue is bumped until after the election raising difficult questions.
The second claim is based on Section 5 of the Fourteenth Amendment which gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. There are several problems with this argument too. The first is that the Supreme Court has not been that kind to Section 5 legislation. The second is the basic legal principle of when such legislation is required to implement a provision. Generally speaking, if a constitutional provision creates a rule (like Section 3 does), that rule is considered to be self-executing and can be invoked in any case in which an issue related to that constitutional provision applies. For example, courts can consider a claim that a fine in a criminal case is too high and violates the Excessive Fines Clause of the Eighth Amendment even without a congressional statute defining what qualifies as an excesive fines. Here, Colorado has a provision of law requiring that a candidate be eligible to hold office before they can validly file. Section 3 creates a rule that disqualifies certain candidates, and Colorado (bound by the Supremacy Clause to follow the Constitution) is deciding whether Trump is disqualified under that rule. The second reason is that holding that enacting legislation is required is inconsistent with the waiver provision of Section 3. The waiver provision requires a two-thirds majority of both houses of Congress to waive the application of Section 3 to a particular individual or group of individuals. If enacting legislation is required, Congress could waive Section 3 by a simple majority vote in both houses by repealing any legislation enforcing Section 3.
The third claim is that the challenge to President Trump is not ripe — either because the current challenges are to the primary ballot or that Section 3 only applies once the candidate is elected. The courts focusing on the primary ballot have a point, but it is not a good one. The point is that no one state’s primary ballot will control who is the Republican nominee because the nominee is chosen by the Republican National Convention. While that is technically true, the same could be said about the general election and the electoral college. But, due to the restraints of jurisdiction, each state can only rule on Trump’s placement on its ballot. While that may be an incomplete remedy, if Trump is ineligible to run, then all of the states should be reaching the same conclusion, and the effect would be the same as if the trial court could remove him from the ballot in all of the states.
As to the second part of this claim, while as Trump argues, it is true that a two-thirds vote of both Houses could waive his disqualification, until such a vote takes place, he is ineligible to hold office. A basic principle of election law — followed by many but not necessarily all states — is that candidates who are ineligible to hold the office they seek are not permitted on the ballot. Allowing such candidates on the ballot creates the potential for chaos in which the winner of the election is ineligible resulting in a vacancy in the office. While perhaps there are some positions for which there is a rule in place for automatically filling the vacancy for the remainder of the term, that still does not mean that such candidates should be allowed to run.
While many commentators see the first and third claims as “off ramps” permitting the Supreme Court to avoid the merits issues, the Supreme Court could have avoided the merits issues by not taking the case. And a ruling that punts the responsibility to Congress after the election seems to be an invitation to trouble next December and January. While anything is possible, inviting such chaos seems to be contrary to what this Supreme Court wants to do.
So that leaves us to the merits of Trump’s eligibility to run. There are two basic arguments here. The first is that Section 3 does not apply to the President. The second is that January 6 is not an insurrection.
The first argument has some merit, but it is institutionally problematic. Unless the general reference to “any office . . . under the United States” includes the President, Section 3 does not mention the President. And there are some slight differences in the oath taken by the President and other officials which might implicate the triggering language. But the reliance on the Oath language would create a weird rule in which a former member of Congress who took part in an insurrection could not run for President but a former President who took part in an insurrection could run for Congress. Admittedly, there are some arguments that the Reconstruction Congress did want state officials to abuse Section 3 by disqualifying candidates for President, but the same argument would apply to Congress and presidential electors who are covered by the plain language of Section 3. In all probability, the Reconstruction Congress simply overlooked the possibility that someday we could be faced with a situation in which a former insurrectionist was a serious candidate for the presidency. Instead, the express language dealt with the federal offices that former Confederates were holding, and the Reconstruction Congress thought that the catch-all language would cover the rest. While the Supreme Court could go down this route, it would in essence bless attempted coups by sitting presidents, and that might be a hard pill for any Supreme Court to swallow.
Which gets us down to the basic question — did President Trump engage in an insurrection or rebellion. And, if the Supreme Court reaches that question, the ultimate question will be what does it mean to engage in a rebellion or insurrection. This Supreme Court tends to like examining the historical record to see what the terms would have been understood to mean by the Senators and Representatives voting to submit the Amendment to the states and by the state legislators who ratified the Amendment. Obviously, the prime example of an insurrection or a rebellion was the Confederate States of America. But that was not the only act of armed resistance during the eighty years between the adoption of the Constitution and the enactment of the Fourteenth Amendment. For example, in the early years, there was the Whiskey Rebellion. But throughout the years, there were various slave revolts (the most famous of which would have been Nat Turner’s in the early 1830s), the battles between supporters of alternative territorial governments in Kansas in the early 1850s, and John Brown’s raid on the U.S. armory in Harper’s Ferry shortly before the Civil War.
It is hard to know what the Supreme Court will say about these examples (although I would expect at least one of the amicus briefs to discuss this issue). The slave rebellions seems to be different than the other uprisings, and I think that should be what will drive the test adopted by the Supreme Court. While, in some cases, there was a component of trying to terrorize slave owners, the slave rebellions were usually not attacks on or attempts to takeover and hold government facilities. That seems to be an important distinction. To qualfiy as an insurrection or rebellion, it would seem that the effort would have to be either: 1) an attempt to establish a competing authority (e.g., independence for a particular area or an alternative “true” government for a region or the nation); 2) an attempt to usurp power by unlawful means (e.g, a coup attempt); or 3) an attack on government facilities for a political purpose. And the fact that some of the pre-Civil War insurrections may have been viewed as justified by the Reconstruction Congress would explain the waiver provision in Section 3 — allowing a future Congress to restore eligibility to “good” rebels and insurrectionist.
But, if the Supreme Court reaches the issue of what counts as an insurrection, I would expect the Supreme Court to establish a clear, easily applied test. We have already heard from some Trumpist Secretary of States that, if Trump is disqualified, they will disqualify Biden too. That, unfortunately appears to be the Trumpist way of doing things — frivolous tit for meritorious tat — that we are also seeing play out in the ludicrous efforts to impeach President Biden for being Hunter Biden’s father.
And part of setting up the test will probably include addressing issues which will be raised about the process followed in Colorado (and the process currently being followed in Maine). Colorado had an evidentiary hearing by a trial court followed by an appeal. While there are some complaints about that process and the Supreme Court theoretically could use those to avoid the merits issues, I think the Supreme Court will generally approve of Colorado’s process as it is the process that is usually used to resolve challenges to candidates and generally meets with what the Supreme Court has previously said about due process.
On both the test for insurrection and the process, the Supreme Court, in theory, could find flaws with how Colorado did things and remand for further proceedings with appropriate instructions on how to do things right. That would be a normal course of action for the Supreme Court. But that normal course would lead to another appeal in August or September. While this Supreme Court is notorious for finding some way to punt decisions to another day, I don’t think the Supreme Court will want to do so in this case. Either the Supreme Court will decide that Trump is eligible or they will want to disqualify Trump in time for the Republican Party to find another candidate.
