This is a high level overview of the decision in Trump v. Anderson, written in a format as I’ve been presenting in various ways over the last few days. Disclosure: I did file an amicus brief in support of neither party in this case, and in the court below.
On March 4, 2024, the Supreme Court decided Trump v. Anderson. It issued a per curiam opinion reversing the Colorado Supreme Court and effectively permitting Donald Trump’s name to appear on the Republican primary ballot.
Section 3 of the Fourteenth Amendment provides:
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.
The State of Colorado, after a divided decision by the Colorado Supreme Court, had held that Donald Trump had engaged in insurrection for purposes of Section 3 for his role in the January 6, 2021 riots at the Capitol. It concluded he could not appear on the Republican primary ballot in that state. While he was excluded from the ballot, it stayed the ruling, so he appeared on the ballot as the case was appealed.
The United States Supreme Court expedited review and issued its decision in a little less than a month. It was mostly unsurprising after listening to oral argument. The sense was that at least eight justices, if not all nine, were inclined to reverse the Colorado Supreme Court on some theory that the that the state of Colorado, or any single state, didn't have this power to exclude ineligible presidential candidates from the ballot and didn't have the power to enforce this provision for varying structural or practical reasons. There was just the question from the court about how it got there.
Trump v. Anderson is a per curiam decision, which means we do not know the author, and, although I shouldn't speculate, it reads in some respects like the voice of Chief Justice Roberts. The result was unanimous, 9-0, essentially saying that Colorado lacks this power. But there are sharp elbows on the path there—the path not only to that one holding, but whether other holdings should be reached. So six justices, Chief Justice Roberts, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all agreed with heart of the reasoning in the per curiam opinion. Justice Barrett wrote separately to explain she only agreed with part of the majority per curiam opinion. And then there was a concurring opinion jointly authored by justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson concurring in the judgment only, but they too agreed with the heart of the reasoning of the majority.
I’ll focus on the consensus view of the court for a moment. That part of the decision really focuses on sort of this overall constitutional point, the text, structure, context, and so on. It begins with a quotation from U.S. Term Limits v. Thornton, a 1995 case, which says that that states had no power to add term limits or additional qualifications for congressional candidates. That case had in turn cited the great Justice Joseph Story in his Commentaries in the Constitution, to say that if states are exercising power in federal elections, that power has to come from some source in the constitution.
So if you are looking at Section 3 in the context of a presidential election, where is the state power? Well, it's certainly not going to be found in the 14th Amendment, which is a constraint on state power. And Section 5 gives Congress the power to enforce it, but it gives no power to the states. As you run through the rest of the Constitution, you can't find other provisions of the Constitution empowering states to enforce this provision against a presidential candidate. Articles I and II deal with congressional elections and presidential elections. But it's not clear that implicitly within them is the later power to come back and enforce Section 3.
By the structure of the Constitution, this is a provision that's designed for congressional enforcement, for national remedies and national mechanisms. As a practical matter, it makes very little sense for states to add the sorts of burdens on presidential candidates. If they want to do it for state candidates, it's their own thing. But to do so for presidential candidates makes very little sense. That makes very little sense given that Congress can lift the disability by a two thirds vote, so for a state to step in and hold a candidate not qualified for Congress to swoop in later and have to say, well, now we're going to lift the disability, would seem to force Congress’s hand rather than leave the power to Congress.
And the very end of the opinion are a series of practical concerns that one state’s evidentiary law or state’s procedural setup for how these challenges are filed could have a ripple effect throughout the United States, and we might reach inconsistent verdicts across the United States. And states in particular have less of an interest in presidential elections, simply because they are national offices, and the notion that states could adjudicate qualifications make these determinations and contested factual claims, and then reach kind of a patchwork result across the United States, not something that makes a whole lot of sense structurally.
That was Part II-B of the per curiam opinion, joined in full by Justice Barrett, and joined again in logic, if not in full, by the concurring opinion by Justices Sotomayor, Kagan and Jackson. So that that could have been it. That would have been easy in a way, for the Court.
But instead, there is a lot of friction on the court in a different context. So Part II-A of the opinion, where Justice Barrett peels off, along with the other concurring justices, addressed this sort of a separate question, which is not simply whether states have the power to enforce Section 3. It's more a question of who else and in what context has the power to enforce it. And for that, the court turns to the way that Section 3 is set up.
The five-justice majority speaks about how Congress has this role now to enforce the provisions of Section 3. Section 5 of the Fourteenth Amendment Amendment provides for Congress to have the power to enforce this provision of the Constitution with appropriate legislation, that appropriate legislation must be, in the words of other Supreme Court precedent, including City of Boerne v. Flores, a “congruent and proportional” remedy for the concerns that are addressed by these provisions of the Constitution.
When we look at the fact that we're dealing with this question, the factual dispute of a class of individuals barred for engaging in an “insurrection,” as Justice Kavanaugh at oral argument noted, we must ascertain who is covered. That requires a determination. This is something the Colorado Supreme Court recognized was necessary, in this case—the determination of whether someone engaged in insurrection ,which required procedures and factual findings.
And this is also what Justice Chase on the United States Supreme Court, then writing circuit as a circuit justice in 1869, noted in a case call Griffin's Case. It has a lot of attention and in some of the scholarly discourse, where a federal judge was deciding this case one year after ratification of the 14th Amendment, which was ratified in 1868. Justice Chase is hearing a habeas challenge from Griffin, who had been convicted in West Virginia state court. And he's challenging that conviction in federal court to say, well, I my conviction is invalid because it was adjudicated issued by a judge who was barred from holding office by Section 3. And Chase, writing this opinion says, Look, I'm not in a position to be able to determine these things. In part I have to make a determination, and “proceedings, evidence, decisions, and enforcement of decisions are indispensable.” Unless he's given some guidance, especially from Congress to figure out what to do here, the justice is not in a position to make this adjudication.
So Part II-A of the opinion really rides heavily on Congress's role here, because the Constitution empowers Congress. It enables Congress, subject to judicial review, to pass appropriate legislation, and Congress's Section 5 power is “critical” when it comes to Section 3. The per curiam opinion provides these sorts of statements before it then leads into the argument that the state lacks the power.
At the very end of the opinion, the per curiam opinion says these two things kind of go hand in hand. All of these things are essential. It's that Congress is the one that does these things, and that states lack the power to do so.
Now, Justice Barrett writes separately to say, I agree on the state's lack the power, we don't need to decide anything else today. I would not go in the path of the majority has done.
And then you have the concurring opinion the concurring opinion by Justices Sotomayor, Kagan, and Jackson. They seem to agree with part two of the opinion essentially agreeing that states don't have any such authority. They fracture very badly with the majority's approach, thinking about this congressional role. Some of the language the court that the concurring opinion uses, saying that these musings about Griffin's Case and about congressional power are as inadequately supported as they are gratuitous. And they go on to suggest that Section 3 is not special and does not require congressional enforcement alone. They point out that other provisions of the Constitution, including the Reconstruction Amendments, including things like Due Process, Equal Protection, and the abolition of slavery, which don't require additional congressional implementing legislation. They worry about how this is going to be applied in the future and whether or not they're adding these constraints, and how Congress goes about enforcing Section 3 or prohibiting other actors from enforcing Section 3.
The only concrete example they give is the concern that the forecloses judicial enforcement of that provision such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The notion being that without congressional implementing legislation, if you have someone who had taken an oath to support the Constitution, engaged in insurrection, and now we're serving as a prosecutor, it could be impossible for somebody to raise a defense to say this prosecutor is not authorized to hold this office. So there were some sharp elbows.
A few things to talk about here.
The first is the court doesn't touch really any factual issues. It doesn't touch questions about whether January 6 was an insurrection, or their Donald Trump engaged in an insurrection, whether his speech or his conduct was protected. These are just pure legal questions that the court is focused on.
Another is that this really closes the door and any of these ballot challenges going forward, whether it's the primary election or the general election. The court is quite clear that there's no role for the state and enforcing these provisions.
Another is that the opinion is very centered on section three of the 14th amendment. So it doesn't seem to foreclose the possibility that states exercising their power under Article II of the Constitution, to exclude, say, a 21 year old from the ballot or a Nicaraguan national from the ballot, and states might continue to be able to do so. Instead that the opinion looks much more at Section 3 and how the Fourteenth Amendment shifts this balance of power among the the federal government and the state governments to say that it's foreclosing some authority from the States. And there's not affirmative enforcement authority given to the States as a result. So it seems very much limited to what's happening with the Fourteenth Amendment and doesn't really touch on other presidential qualifications, disputes, election disputes, ballot access disputes, if we're just dealing with Section 3.
It also seems that it would appear to foreclose some challenges even might arise after the election. This is some of the opinion that I'm still wrapping my mind around and trying to understand how different parts of the opinion interact with one another. But the courts emphasis on speaking about Congress and legislation, and how that remedy needs to be tailored adequately to the remedy that are to the harm that you've identified, really does seem to say that other challenges would be inappropriate—at least without specific congressional legislation. But it's very hard to identify exactly what the court is doing when it is when it is suggesting that Congress has a role here with legislation.
What are those things that Congress can do apart from legislation such as seating its own members, as opposed to enacting legislation? What things by as the concurring opinion points out general federal statutes, such as (which the concurring opinion does not mention) the Administrative Procedures Act or the Electoral Count Reform Act? What kinds of deference is going to be given to Congress when it is acting pursuant to those rules, or when courts are acting pursuant to those rules, rather than things under its enforcement authority under Section 3? So there are some myriad questions that are ahead. And it fails to provide some of the clarity, which I think was part of the goal of the opinion
Matters are now largely left to the political process. There will be major questions about presidential immunity coming up in the weeks ahead, as the Supreme Court hears that case, and a number of criminal challenges to Trump in the United States. I think there's not going to be a closing off of the fact that the public will continue to intensely dispute, what is an insurrection, whether Trump engaged in an insurrection, and so on going forward, but that will be a matter of debate in the general election. The Court has at least closed that door when it comes to states attempting to enforce it for their ballot access provisions.
