More than 70 “friend-of-the-court” briefs have been filed in the crucial constitutional battle over Donald Trump’s eligibility for the presidency, and some by the nation’s most respected historians and legal scholars offer compelling arguments on both sides. But in the Supreme Court on Feb. 8, the arguments by the former president and his challengers will be the justices’ primary focus.
The best way to listen to any Supreme Court argument is to listen closely to the Justices’ questions. Even though they are very good at playing devil’s advocate with the lawyers standing before them, their questions often signal which issues they are most interested in. And the justices also often use their questions as indirect dialogue with each other. The latter is important because, by tradition, they do not speak to each other about a case being argued until after arguments.
Link: Listen to Live Arguments at the Court
The case, Trump v. Anderson, is chock full of issues surrounding the applicability of Section 3 of the 14th Amendment to the former president. The justices could have narrowed the case for argument but chose not to do it. That makes listening to their questions all the more important.
At the heart of the case is Section 3 is the Disqualification Clause. It states:
“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.”
Trump petitioned the Supreme Court after the Colorado Supreme Court ruled that Section 3 applied to him, and that he had engaged in insurrection– the Jan. 6, 2021, attack on the U.S. Capitol– and was ineligible to appear on the state’s primary election ballot.
The ballot challenge was brought by nonagenarian and former Republican state legislator Norma Anderson, and three Republican and two unaffiliated voters.
Here is a quick look at the arguments being pressed by Trump and his opponents. Not surprisingly, lawyers for both sides press arguments based on text and original meaning in an effort to persuade conservative justices, particularly those who claim to be “textualists and originalists.”
An officer ? An insurrectionist?
Because Trump is the petitioner, his lawyer will be first at the lectern. His brief indicates that the lawyer believes Trump’s strongest argument is that Section 3 does not apply to the former president because a president is not an “officer of the United States.”
Trump’s lawyer argues that the president or presidency is missing from Section 3’s list of officials and positions to which it applies: “The Court must give effect to the enacted language rather than ruminate about the overarching ‘purpose’ or objectives of those who drafted it.”
But his opponents’ lawyer counters that the Constitution says the presidency is a federal “office” and the natural meaning of “officer of the United States” is someone who holds a federal office. The lawyer adds that it would make no sense to read Section 3 as disqualifying “all oath-breaking insurrectionists except the one holding the highest office in the land.”
Unlike Trump’s first emphasis, Trump’s opponents open their arguments to the court with an emphasis on the lower court’s ruling that Trump engaged in an insurrection.
“Instead of peacefully ceding power, Trump intentionally organized and incited a violent mob to attack the United States Capitol in a desperate effort to prevent the counting of electoral votes cast against him,” they argue. “The original public meaning of ‘engag[ing] in’ insurrection extends to those who organize and incite it. Section 3 applies to insurrectionist presidents.”
Trump’s lawyer, however, counters that the lower court was wrong to find that the former president engaged in an insurrection. That court, he contends, imputed the conduct of others to Trump. Trump “never participated in or directed any of the illegal conduct that occurred at the Capitol on January 6, 2021. In fact, the opposite is true, as President Trump repeatedly called for peace, patriotism, and law and order.”
And more issues
Some political experts suggest that the easiest way for the justices to avoid public blowback regardless of which side wins is to accept Trump’s argument that Section 3 can’t be enforced without specific legislation from Congress.
Trump relies on a very old circuit court case, In re Griffin (1869), in which Chief Justice Samuel Chase ruled that Section 3 was inoperative until Congress passed enabling legislation. “And there are reasons to do so here given the precedent of Griffin’s Case, the antidemocratic nature of Section 3, and the danger that courts will apply the ‘engaged in insurrection’ test in a partisan or tendentious manner,” Trump’s lawyer argues.
But his opponents contend the Constitution gives state legislatures broad power to limit the presidential ballot to candidates who are constitutionally eligible to hold the office. “Like other constitutional qualifications for office, Section 3 has inherent legal force and states may enforce it through their own laws without awaiting federal legislation.”
Trump is also arguing that Section 3 prohibits individuals only from holding office, not from seeking or winning election to office. His opponents counter that Section 3 is not unique in barring holding office instead of running for it. They note that the Constitution has age, residency, and natural born citizen requirements for the office of the presidency. “Under their power to regulate elections, states can and do refuse ballot access to candidates who flunk these requirements for holding office,” they say. “Trump has been disqualified since January 6, 2021.”
And finally, Trump contends that the lower court ruling against him violated the Constitution’s Electors Clause because nothing in Colorado’s Election Code allows the state court to order the secretary of state to remove a candidate from the presidential primary ballot. But his opponents claim Trump forfeited this argument by never raising it in the lower courts.
Returning for a moment to the many friend-of-the-court briefs, perhaps the most compelling argument is made by three of the nation’s top election law scholars who don’t always agree on every election issue but do agree on this one: The Supreme Court should not take an easy off-ramp in the Trump case, but instead should decide the merits, according to Edward Foley, Benjamin Ginsberg and Richard Hasen.
“A decision from this Court leaving unresolved the question of Donald Trump’s qualification to hold the Office of President of the United States under Section 3 of the Fourteenth Amendment until after the 2024 election would risk catastrophic political instability, chance disenfranchising millions of voters, and raise the possibility of public violence before, on, and after November 5, 2024,” they argue.
They remind the justices that while the Constitution places the duty for administering federal elections first in the states, “it also leaves an essential role for this Court ‘to say what the law is.’”
Try to tune in (www.supremecourt.gov) on Feb. 8 at 10 a.m. to what may be one of the most important and exciting constitutional arguments in decades.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
