This week’s Iowa Republican Caucus results were fairly consistent with the final poll: Trump ended up at 51%, followed by DeSantis at 21%, Haley at 19%, and Ramaswamy at 8%. Ramaswamy promptly dropped out and endorsed Trump, leaving three main candidates going into the New Hampshire primary, now only three days away. Also endorsing Trump this week was another Presidential contender who had suspended his campaign prior to Iowa, South Carolina Senator Tim Scott.

No decisions came out this week from either the D.C. Circuit (presidential immunity for Jan 6th), or Judge Engoron (Trump Org fraud damages). Either or both may be issued this coming week; or, not.

The Carroll I trial (defamation damages against Trump) got underway this week and is expected to wrap up next week. Trump attended portions of the trial on Tuesday and Wednesday, and he made repeated comments during Carroll’s testimony that the jury might have been able to hear, prompting Judge Kaplan to threaten to remove Trump from the courtroom.

Given all this, the main development of interest this week was probably Thursday, the deadline for Trump to submit his legal brief to SCOTUS in his appeal of the SCOCO decision removing him from the Colorado primary ballot. In Colorado the case was known as Anderson v. Griswold, but now that the plaintiffs prevailed below and the appeal has gone federal, the case will go down in the history books as Trump v. Anderson. The named respondent, Norma Anderson, is a former Republican state representative and state senator who had retired from politics in 2006 at the age of 73, but was one of six Colorado Republican and unaffiliated voters who filed the lawsuit organized by CREW to remove Trump from the Colorado ballot. How many nonagenarians get to play a major role in the future of the Republic?

I have yet to read Trump’s brief, or any of the dozens of amicus briefs filed in his support. Briefs from the other side, and from amici supporting the decision below, are due on January 31st; I imagine I will write more about the case after those briefs have been submitted. However, I did want today to talk about the broad outlines of Trump v. Anderson, as well as talk about one amicus brief that has been filed in support of neither party.

The crux of the matter is the following language from Section 3 of the 14th Amendment, adopted in 1868 in the wake of the Civil War, where to enhance clarity I’ve omitted portions of the text that are less relevant to our current context:

“No person shall … hold any office … under the United States … who, having previously taken an oath … as an officer of the United States … to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same… But Congress may by a vote of two-thirds of each House, remove such disability.”

The original intent of this section was to prevent future participation in government from former leaders of the Confederate States of America. However, the language enacted was not specific to the Civil War, but talks more generally about “insurrection or rebellion”. This is one of four substantive sections of the 14th Amendment, and then there is a Section 5, which reads in full as: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

As such, the controversy over whether this constitutional provision is relevant to the Presidential Election of 2024 can be distilled down to four main issues.

First: Does Section 3 of the 14th Amendment pertain to the Presidency? This question manifests itself in two distinct ways. Is a former President an example of someone who previously took “an oath as an officer of the United States to preserve the Constitution”? And, is the Presidency an example of “an office under the United States” to which this eligibility criterion pertains?

Second: Does Trump’s conduct on and before January 6, 2021 qualify as insurrection against the constitution of the United States?

Third: Is Section 3 of the 14th Amendment self-executing? That is, if an individual had engaged in insurrection or rebellion, are they automatically ineligible to hold office under the Section 3 of the 14th Amendment, or alternatively would Congress have needed to take implementing action under Section 5 of the 14th Amendment to make that individual ineligible?

Fourth: When does the question of an individual’s eligibility under Section 3 of the 14th Amendment become ripe? When an individual is placed on a primary ballot? Or on a general election ballot? Or only after they’ve won an election and they attempt to “hold office”?

These are the issues with which SCOTUS will need to grapple in resolving this case. And one can imagine a vast number of different resolutions. Maximalist rulings might include a definitive statement that Trump is eligible, or is ineligible, under the 14th Amendment to serve as President. But, it is very possible that the SCOTUS ruling in Trump v. Anderson could be less definitive, extending the cone of uncertainty around this issue.

It is towards that end that three experts in election law from disparate ideological backgrounds – Edward Foley, Benjamin Ginsberg (the Republican lawyer, not the political scientist), and Rick Hasen (the author of Election Law Blog) – banded together to submit an amicus brief in Trump v. Anderson in support of neither party.

The FGH amicus brief stakes out no position on the first two issues I laid out above, noting that “reasonable arguments can be made on both sides” of the question of whether Trump is disqualified under the 14th Amendment. Instead, FGH focus on making two points: Section 3 is indeed self-executing; and not only was Colorado justified in making a pre-election decision about whether Trump is qualified, but it is vital that SCOTUS address the merits of the issue now.

Quoting from the brief: “We appreciate fully that the Members of this Court would prefer not to be thrust into the middle of a presidential election like this. But there is no avoiding it. … A decision vacating the lower court’s decision on procedural or jurisdictional grounds, thus reinstating Mr. Trump on the ballot without deciding the merits of the disqualification question, would not reflect an admirable judicial modesty; instead it would mark a dangerous refusal by this Court to do its duty.”

FGH then go on to discuss various scenarios of what could come to pass in a world where Trump remains on the ballot without a definitive SCOTUS ruling on whether the 14th Amendment disqualifies him, including the following interesting point:

“If Mr. Trump ostensibly wins the Electoral College, it is a certainty that some Members of Congress will invoke Section 3 in an effort to prevent him from returning to the presidency. They will argue that only a majority of both houses is necessary for disqualification and that a majority of both houses already made a determination that Trump is disqualified under Section 3 when the House impeached him over the January 6 incursion and 57 senators voted to convict. Whether or not this effort is successful, it would risk serious political instability between November 2024 and January 2025.”

They also discuss the lack of clarity about who would become the new President if Trump won a majority of electoral votes but was then determined by Congress to be disqualified from assuming the office. They point out a conflict between the 12th Amendment, which indicates that if no (eligible) candidate has a majority of electoral votes then the House needs to select a candidate from among the (eligible) candidates receiving electoral votes (which in this situation could be Biden alone), and the 20th Amendment, which indicates the Vice-President-elect “shall then act as President” if “the President-elect shall have failed to qualify” before inauguration day. As FGH write:

“All of this would leave it dangerously unclear who, following a disqualification of Mr. Trump, should serve as President. Throw into the mix Mr. Trump’s certain refusal to accept any disqualification by Congress, and there would be no way to know who is entitled to act as President and commander-in-chief of the Armed Forces starting at noon on January 20. The consequences of that uncertainty would be existentially perilous to the United States, and they must be avoided if at all possible.”

No pressure, Chief Justice Roberts. No pressure.