Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The U.S. Supreme Court on Feb. 8 heard oral arguments for Trump v. Anderson.
The Colorado Supreme Court held former President Donald Trump is constitutionally disqualified from serving as president under Section 3 of the 14th Amendment.
In oral arguments, Trump’s attorney Jonathan Mitchell asserted the Colorado Supreme Court’s decision was wrong and should be reversed for numerous independent reasons.
Mitchell argued Trump isn’t covered by Section 3 because the president isn’t “an officer of the United States” as that term is used throughout the Constitution. Mitchell asserted that “Officer of the United States” refers only to appointed officials, and it doesn’t encompass elected individuals, such as the president or members of Congress. Mitchell referenced the commissions clause, the impeachment clause and the appointments clause, each of which he alleged used “officer of the United States” to refer only to appointed and not elected officials.
Mitchell added Section 3 can’t be used to exclude a presidential candidate from the ballot even if that candidate is disqualified from serving as president under Section 3 because Congress can lift that disability after the candidate is elected but before they take office. Mitchell argued a state can’t exclude any candidate for federal office from the ballot on account of Section 3, and any state that does so violates the holding of term limits by altering the Constitution’s qualifications for federal office.
Justice Clarence Thomas asked Mitchell to address whether or not Section 3 is self-executing.
Mitchell replied the question is “entirely up to Congress,” and stated the argument goes beyond actually saying that Section 3 is non-self-executing.
Chief Justice John Roberts went on to address the counsel: “What if somebody came into a state secretary of state’s office and said, I took the oath specified in Section 3, I participated in an insurrection, and I want to be on the ballot? Does the secretary of state have the authority in that situation to say, no, you’re disqualified?”
“No, the secretary of state could not do that, consistent with Term Limits, because even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election,” said Mitchell.
Later in the oral argument, Justice Elena Kagan asserted Mitchell was making a statutory preemption argument rather than a constitutional argument. “You’re not saying that the Constitution gives you this rule,” Kagan said. “It’s the kind of combination of Griffin’s Case plus the way Congress acted after Griffin’s Case — that gives you the rule?”
“That’s exactly right,” agreed Mitchell.
Later on, Justice Neil Gorsuch observed Mitchell’s argument largely hinged on the difference between the term “office” and “officer.” Gorsuch went on to ask Micthell what theory he’d rely upon for the two terms to carry such a different weight. Mitchell noted his theory stems “from the constitutional text.”
“[There] are officers that do not hold offices under the United States, for example, the Speaker of the House and the President Pro Tempore. They’re described as officers in Article I who are chosen by the legislature,” Mitchell said.
“They also have to be officers if they’re able to be covered by the Presidential Succession Act because, under the Constitution, only officers can serve when there’s a vacancy in both the presidency and the vice presidency,” continued Mitchell. “So they’re officers, but they’re not offices under the United States because of the Incompatibility Clause, which says that if you’re a member of Congress, you cannot simultaneously hold an office under the United States.”
Jason Murray provided oral argument for the respondent. “We are here because, for the first time since the War of 1812, our nation’s capitol came under violent assault,” Murray began. “For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.”
Murray asserted that by engaging in an insurrection against the Constitution, Trump disqualified himself from public office. According to Murray, Section 3 uses deliberately broad language to cover all positions of federal power requiring an oath to the Constitution.
“Under Article II and the Tenth Amendment, states have the power to ensure that their citizens’ electoral votes are not wasted on a candidate who is constitutionally barred from holding office,” noted Murray.
Thomas asked if Murray had any “contemporaneous examples” of states disqualifying national candidates. Murray noted the only example he could think of was concerning the election of a congressman in Georgia in 1868.
“[The] narrower power you’re looking for is the power of disqualification, right?” asked Roberts. “That is a very specific power in the Fourteenth Amendment. And you’re saying that was implicitly extended to the states under a clause that doesn’t address that at all?”
“We would say that nothing in the Fourteenth Amendment takes away from the states their broad and merely plenary power to determine the manner of selecting their electors in the manner that they see fit …” said Murray.
Justice Brett Kavanaugh asserted Murray employed a “greater includes the lesser” argument. “[The] states have the power, the legislature has the power to choose electors.”
“We certainly have a long history in this country of states using their power to determine the manner of selecting presidential electors to enforce other qualifications in the Constitution,” responded Murray.
“I don’t see why Section 3 should be treated any differently. Section 3 speaks in the same mandatory terms,” continued Murray.
“I think what’s different [is] the processes, the definition, who decides questions really jump out at you when you look at Section 3,” continued Kavanaugh.
Toward the end of the oral argument, Justice Samuel Alito asked, “We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate from the ballot. What about that situation?”
Colorado’s Solicitor General Shannon Stevenson responded: “Your Honor, I think we have to have faith in our system that people will follow their election [processes] appropriately, that they will take realistic views of what insurrection is under the Fourteenth Amendment. Courts will review those decisions. This Court may review some of them. But I don’t think that this Court [should] take those threats too seriously in its resolution of this case.”