Tomorrow morning, SCOTUS will hear oral arguments in Trump v. Anderson, which could turn out to be one of the most momentous Supreme Court cases of modern times.
What I wanted to accomplish in this post was lay out the major legal issues that, based on the briefing, appear to be at play in this case. The direct issue at hand is whether SCOCO committed some form of error in ruling that Trump is ineligible to appear on the Colorado Republican primary ballot. Depending on how SCOTUS answers that question, there may or may not be implications far beyond Colorado, however.
Across the two reply briefs filed this week by Trump and by the Colorado Republican Party, there are four major arguments put forth as to why the SCOCO decision was incorrect.
The first main argument is that Section 3 of the 14th Amendment does not apply to the conduct of a President, on either or both of the following grounds: the President is not, under the Constitution, an “officer of the United States”; and the oath sworn by the President to “preserve, protect and defend the Constitution” is not “an oath to support the Constitution.”
As a non-lawyer, both of these statements strike me as absurd. If you accept these arguments, as the original trial court in Colorado did before being overruled by SCOCO, then you are saying that the drafters of Section 3 weren’t concerned about having an oath-breaking insurrectionist serve as President, even though they specifically sought to prevent an oath-breaking insurrectionist from serving as a member of the Electoral College that elects the President! To the contrary, a great amount of evidence has been surfaced in recent months, from Congressional speeches and newspaper editorials, to the effect that it was widely understood in 1868 that the proposed Section 3 would prevent Confederates like Jefferson Davis from serving as President. This “public understanding” ought to be relevant to the conservatives on the Court, who have relied on that type of reasoning in their recent 2nd Amendment jurisprudence.
It has also been noted that Trump is the only person in the history of the United States who has sworn the unique Presidential oath without having previously served in some other governmental role in which they would have sworn a “support the Constitution” oath. As such, if SCOTUS were to accept the argument that “support” is a ‘magic word’ that isn’t subsumed within “preserve, protect and defend,” then that would in effect be a Trump-specific ruling with relatively few future potential adverse consequences. That could make it an attractive position for SCOTUS to take, if it is trying to find an easy way out here. However, it would still seem to be a ludicrous argument to make; if you have sworn to preserve, protect and defend something, then surely the public understanding is that you have sworn to support it?
The second argument is that Trump did not “engage in insurrection” in his conduct on and before January 6th. However, a five-day-long trial in Colorado concluded that he did; and it is not clear to me that SCOTUS has the ability to second-guess that factual finding unless it were to find that there was clear error by the trial judge, which none of the SCOCO justices (even the three dissenters) believed.
The third argument is that only Congress can take action to enforce Section 3. I imagine tomorrow we will hear a lot about an 1869 ruling, made by SCOTUS Chief Justice Chase riding circuit and never reviewed by the full SCOTUS, in Griffin’s Case. While that ruling is perhaps the strongest weapon in Trump’s arsenal here, the respondents have made some convincing arguments that it does not decide this case. In particular, Griffin’s Case was about a judge who already held office in 1868 when the 14th Amendment was enacted, and whether a ruling he made after its enactment was therefore unlawful. Chase concluded that Congress would have needed to take action to remove such people from the offices they already held at the time of enactment.
The fourth argument is that Section 3 only prevents someone from holding office, and cannot be used to keep someone off the ballot–particularly in light of the language therein which allows Congress to “remove the disability” by a two-thirds vote of both chambers. The reasoning here is that one cannot predict what Congress may do in the future, so it would be inappropriate to keep off the ballot someone who is currently disqualified from holding office when Congress could later take action to un-disqualify (if that is a word?) that person.
On the other hand, you could make a similar statement about, say, the Constitution’s requirement that someone must be at least 35 to serve as President: Theoretically, a Constitutional amendment could be enacted between now and the inauguration to change that. But when Justice Gorsuch was on the 10th Circuit, he wrote an opinion in Hassan v. Colorado upholding Colorado’s right to keep a person who is not a natural-born citizen off of the primary ballot for President. As Gorsuch wrote back in 2012: “A state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
I think those are the legal arguments most likely to be in play at SCOTUS, and it will be very interesting to see what can be inferred about each Justice’s perspectives on the case from the questions they ask tomorrow. Consistent with recent SCOTUS practice, there will be a live audio feed carried by C-SPAN, and the argument transcript should be available by mid-afternoon. Get your popcorn ready.