Supreme Court oral arguments Thursday could shed light on what’s at stake for Congress in a case about a Colorado decision to bar Donald Trump from appearing on the state primary ballot based on the 14th Amendment.
The justices last month agreed to take up the issue but did little to clarify which of the numerous legal arguments might ultimately shape their opinion in an historic election dispute.
Several possible decisions could leave Congress with an opening to weigh in on Trump’s eligibility, legal experts say, including the possibility of a partisan showdown as Congress counts electoral ballots in January 2025.
While the justices aren’t expected to rule Thursday, their discussion will give the public insights into their thinking.
The focal point in the litigation is Section 3 of the 14th Amendment, which aims to prevent people who previously took an oath to support the Constitution from holding office if they have “engaged in insurrection.”
The justices will consider a ruling from the Colorado Supreme Court, which cited Trump’s conduct in the lead-up to and during the Jan. 6, 2021, attack on the Capitol, and found he was disqualified from the presidency under the 14th Amendment and should not appear on the ballot.
Several arguments made in the case offer the Supreme Court an opportunity to defer the dispute to a different branch of government, said Derek T. Muller, a law professor at the University of Notre Dame who focuses on election law.
“All of them are ways for the court to shift responsibility to another branch and to say, ‘We’re not going to deal with it now,’” Muller said. “And it leaves open questions for resolution, or maybe indeterminacy, in the weeks and months ahead.”
Trump’s name will still appear on the Colorado primary ballot because of this appeal, but his attorneys argued that the state decision could “likely be used as a template to disenfranchise tens of millions of voters nationwide.”
Implementing legislation
Trump and Republican members of Congress have argued in briefs that the 14th Amendment requires Congress to approve “implementing legislation” to authorize enforcement of Section 3.
The Colorado Republican Party also has backed that argument that the so-called insurrection clause is “not self-executing,” which means that Congress must pass a law to permit individuals to sue under the provision.
A Supreme Court decision that sided with that argument would leave it to Congress to pass such a bill before anyone — Trump as well as other candidates in future elections — could be barred from holding office under the 14th Amendment.
The political realities on Capitol Hill make that exceedingly unlikely during this presidential campaign, but the question would remain open going forward.
A brief from Texas Sen. Ted Cruz, House Majority Leader Steve Scalise of Louisiana and 177 other Republican members of Congress states that the enforcement legislation “is not an empty formality” and disqualification under the section is an “extraordinarily harsh result.”
“The Fourteenth Amendment’s own text confirms that Congress, representing the Nation’s various interests and constituencies, is the best judge of when to authorize Section 3’s affirmative enforcement,” their brief reads.
Plus, if Congress did decide to pass enforcement legislation, it could more specifically define the words “engaging in” and “insurrection,” or even require a fact-finding process, the brief argues.
Attorneys for the Colorado voters who are seeking to remove Trump from the ballot told the justices in a brief that the enforcement argument is beside the point.
Instead of suing directly under Section 3, the Colorado voters brought a claim under Colorado’s election code, “which allows voters to sue for enforcement of federal constitutional qualifications at the ballot-access stage,” attorneys for the voters wrote.
They argue “states are empowered to enforce Section 3, including in presidential elections.”
Republicans have zeroed in on language in Section 5 of the 14th Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.”
But legal scholars point out that argument could fall flat because the Supreme Court has not required enforcement legislation for other parts of the 14th Amendment.
“I don’t think it fits with the language. I don’t think it fits with the structure. I don’t think it fits with the original public meaning of it,” David Super, a professor at Georgetown Law, said. “So for this argument to be tenable, they would have to have some reason why Section 1 of the 14th Amendment is judicially enforceable without legislation, but Section 3 is not.”
Kimberly Wehle, a law professor at the University of Baltimore, said a Section 5 argument still could be appealing to the Supreme Court because justices could avoid deactivating Section 3 entirely.
Plus, the route would allow the justices to avoid taking a hard stance on other legal arguments, such as whether a president falls outside the scope of Section 3.
“If they say Section 5 has to come in, they’re basically punting the whole thing to Congress,” Wehle said.
“They’re saying: ‘We’re not saying Section 3 doesn’t apply to presidents or does apply to presidents. We’re not going to get into the nitty gritty of what the word insurrection means or officer. We’re just saying, it’s on Congress and we’re out. We’re not going to deal with this. Congress needs to pass a law,’” she said.
Joint Session Showdown
Trump and congressional Republicans have argued that Trump should not be barred from the Colorado ballot because Section 3 of the 14th Amendment only prohibits a candidate from holding office, not running for it.
Such a decision would risk a potential constitutional showdown for Congress on the day they count the electoral votes — the same task it temporarily was halted from doing in 2021 when the Trump-supporting rioters stormed the Capitol building, election law experts warned the justices in briefs.
The argument from Trump and Republican members of Congress hinges on a provision in Section 3 that Congress can remove the bar from holding office by a two-thirds vote of the House and Senate.
A state that bars Trump from appearing on the ballot effectively strips Congress of that power to remove the bar from holding office, since it forces Congress to either act ahead of a state’s primary or make that decision when it might not be necessary, the brief from congressional Republicans read.
“Congress could reasonably conclude that it is necessary to address the removal-of-disability issue only after waiting to see whether a candidate prevailed,” the Republican brief argues. “This error alone justifies reversing the decision below.”
Under a decision that sided with that argument, Trump or another similarly situated candidate in the future could remain on the ballot and win a majority of the electoral votes.
In that scenario, Congress would have to decide whether to refuse to count electoral votes cast for a candidate who is “putatively ineligible” because of the 14th Amendment, Muller, the Notre Dame law professor, wrote in a brief.
That would leave no candidate with a majority of electoral votes, and the election would then be thrown to the House of Representatives to decide, Muller wrote.
Muller wrote that it’s also possible that even if Congress decided to count the votes, that a challenge could arise that the candidate had failed to qualify and that the vice president-elect should act as president, which could bring the whole issue right back to the Supreme Court.
“Any decision that purports to leave to Congress some decision-making authority over this area must be precise,” Muller wrote. “Open-ended deference to Congress risks statements used out of context to manufacture an election crisis in the months to come.”
Another group of election law experts pointed to a similar scenario in a brief that urges the Supreme Court to issue a decision that is not “kicking the can down the road.”
Edward Foley, Benjamin Ginsberg and Rick Hasen warned that if Trump won a majority of Electoral College votes “it is a certainty that some Members of Congress will invoke Section 3 in an effort to prevent him from returning to the presidency,” and that it is impossible to predict exactly what would happen if Trump’s qualification is publicly tested in Congress.
“It is enough to acknowledge that the potential for violence — targeted against individual lawmakers and the government generally — is very real,” the brief states.
“The pressure on Congress from all sides would be enormous, as would be the temptation to resolve the disqualification question not as a matter of the legal or factual merit, but as an exercise of political power,” the trio wrote.
Removing disqualification
Congress could still have a role to play even if the Supreme Court finds Trump disqualified for the presidency, because the 14th Amendment allows Congress to remove that ineligibility by a two-thirds vote of each chamber.
That would mean Trump allies in Congress would face a decision on whether to push for votes to make sure he appeared on state ballots, and Democrats would have to decide whether to disqualify their party’s main rival during an election season.
“So it is Congress’s decision to make in the sense that they can exercise their power to remove a disability,” Gerard Magliocca, a professor at the Indiana University Robert H. McKinney School of Law, said.
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