Happy Friday, again! As one of our editors mused this morning, it says something about our country that there was a Supreme Court hearing Thursday to determine whether a man who tried to overturn the results of a presidential election should be allowed to run for president again—and that a writeup of that hearing was bumped from TMD for space!
We didn’t want to overwhelm you with a 4,500-word newsletter this morning, but we also don’t want to sit on this reporting until Monday, either. So please enjoy the very first … TAD.
Have a great weekend, and enjoy the Super Bowl! We’ll see you on Monday.
In Other 2024 News
The U.S. Supreme Court heard oral arguments Thursday in Trump v. Anderson—the case in which the Colorado Supreme Court ruled in favor of removing former President Donald Trump from the state’s GOP presidential primary ballot. The case centers around Section 3 of the 14th Amendment, a relatively arcane constitutional provision designed to prevent elected officials who had violated their oaths of office by joining forces with the Confederacy in the Civil War from holding public office again. The Supreme Court has never heard a case that hinged on Section 3, and it’s believed to have only been cited in a case once in the 20th century.
But the clause could now influence the outcome of the 2024 election, as the court is now tasked with deciding the most consequential electoral case since Bush v. Gore. While the betting market and most legal observers—including the voices behind our niche legal podcast—expect the court to rule against Colorado, the oral arguments illustrated how the justices could potentially justify their ruling.
As a reminder, here is how Section 3 of the 14th Amendment outlines what disqualifies an individual from holding office:
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 Colorado Supreme Court found in December that Trump’s actions on January 6, 2021—specifically inciting the crowd that stormed the Capitol—constituted “engaging in an insurrection,” thus disqualifying him from running for office. The decision reversed a Colorado district court ruling that concluded the qualifications of Section 3 don’t apply to Trump because the president isn’t one of the offices specifically listed in the text of the amendment.
On Thursday, Trump’s lawyer seemed most focused on that question—which officers are subject to Section 3? If Trump’s team could successfully convince the justices the president isn’t an officer, then Section 3 doesn’t apply, and the rest of the arguments (e.g., whether Trump actually engaged in insurrection) become irrelevant. In the briefs submitted to the court on behalf of Trump, more pages were spent arguing the president is not an officer of the United States than any other point under consideration. “President Trump is not covered by Section 3, because the President is not ‘an officer of the United States,’ as that term is used throughout the Constitution,” Jonathan Mitchell, Trump’s lawyer, told the justices yesterday. “‘Officer of the United States’ refers only to appointed officials, and it does not encompass elected individuals such as the president or members of Congress.”
Trump’s legal team substantiated this by pointing to other parts of the Constitution where “officer of the United States” appears to exclude the president—for example, the Commissions Clause says that the president “shall commission all the officers of the United States.” In their reply brief, Trump’s lawyers argued that “the contrapositive follows as a matter of logic: Anyone who is not constitutionally required to be commissioned by the President cannot be an ‘officer of the United States.’” Mitchell also highlighted the Impeachment and Appointments Clauses as using “officers of the United States” in a way that excludes the president, vice president, and members of Congress. The Impeachment Clause, for example, says, “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment,” seemingly distinguishing officers of the United States from the president and vice president.
Arguing on behalf of the group seeking to keep Trump off the ballot in Colorado, Jason Murray suggested that “officers of the United States” is meant broadly under Section 3 and includes the president. “It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief,” he and other members of his legal team wrote in their brief. Yesterday, Murray told the justices that his counterpart “relies on a claimed difference between ‘an office under’ and an ‘officer of the United States,’ but this case does not come down to mere prepositions.”
“The two phrases are two sides of the same coin,” Murray continued, “referring to any federal office or to anyone who holds one.”
Justice Neil Gorsuch pushed Murray on this point, getting him to acknowledge that parts of the Constitution suggest a difference between offices and officers that could support the argument that the presidency is an office but not an officer. “Those may be an exceptional circumstance,” Murray replied.
Justice Elena Kagan, meanwhile, pressed Mitchell on what reason the framers of Section 3 could have had for intentionally excluding the most important federal office from disqualification. “It does seem as though there’s no particular reason, and you can think of lots of reasons for the contrary,” Kagan said.
Mitchell agreed. “I don’t think there is a good rationale,” he conceded. “But this was the text that was settled upon. And it does seem odd that President Trump would fall through the cracks in a sense, but if ‘officer of the United States’ means appointed officials, there’s just no way he can be covered under Section 3.”
Several justices also expressed some skepticism about the practical effect of excluding the presidency from Section 3. Murray emphasized that considering the president as excluded from Section 3 would legally apply to any president, but would effectively create a singular exception for Donald Trump—and Justice Sonia Sotomayor seemed to agree. Aside from George Washington, John Adams, and Trump, every other president—including President Joe Biden—served in one of the offices explicitly listed in Section 3.
Beyond the officer question, the justices appeared to be concerned with issues surrounding the authority of the states to act on Section 3, the processes by which states act, and the potential consequences of having different states come to different conclusions about the eligibility of presidential candidates. Trump’s attorneys argued that “Section 3 may be enforced only through the congressionally enacted methods of enforcement.” The method of enforcement in this case, they said, would be the federal criminal code that criminalizes rebellion or insurrection against the United States and disqualifies people convicted under the statute from holding any office. In their view, because Congress preempts state action, and since Trump hasn’t been convicted of insurrection, states cannot make the determination independently that he engaged in insurrection.
Murray, meanwhile, argued states have a legitimate reason to act. “Under Article II and the 10th 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,” Murray said, going on to cite other qualification areas that states can make determinations on. “States are allowed to safeguard their ballots by excluding those who are underage, foreign born, running for a third presidential term, or as here, those who have engaged in insurrection against the Constitution in violation of oath.” But several justices seemed concerned with potentially opening the floodgates on state abuse surrounding what constitutes an insurrection.
“I would expect that a goodly number of states will say, ‘Whoever the Democratic candidate is, you’re off the ballot,’” argued Chief Justice John Roberts, “and others for the Republican candidate, ‘You’re off the ballot.’ And it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.” Justice Ketanji Brown Jackson expressed similar concerns about the lack of uniformity if different states came to different conclusions.
Murray suggested the Supreme Court was equipped to step and and decide among disparate state decisions, but Roberts sounded skeptical. “Now you’re saying, ‘Well, it’s all right because somebody, presumably us, are going to decide,’” he told Murray. “We’d have to develop rules for what constitutes an insurrection.”
That sounded fine to Murray. “Yes, Your Honor,” he replied. “Just like this court interprets other constitutional provisions, this court can make clear that an insurrection against the Constitution is something extraordinary.”
That exchange captured the main roadblock for those seeking to block Trump from the ballot, as all indications from the oral argument suggest the justices are not inclined to pursue an expansive ruling requiring them to adjudicate what does and doesn’t constitute an insurrection. “It’s likely that the majority of the Supreme Court will rule that Section 3 is not self-enforcing, and it can only be enforced by additional congressional legislation,” Ilya Somin, a George Mason University law professor who filed an amicus brief in support of the Colorado decision, told TMD. “The justices, many of them at least, seemed to like this for pragmatic reasons.”
Murray—and Somin—argued the legal consequences are overblown; if there are abuses by the states stemming from the ruling, then the Supreme Court can step in and sort it out. Reversing the Colorado ruling also has consequences, namely, gutting the functional power of Section 3. Ruling that only Congress can enforce Section 3 turns it “into a dead letter—not just for insurrectionist presidents, but for everyone else,” Somin argued. “It’s highly unlikely Congress will enact new enforcement legislation at any time in the near future.” While the highest court in the land is bound to decide cases according to the best interpretation of the law, not necessarily practical exigencies, the mushroom cloud of political consequences downstream from disqualifying a leading candidate for president looms large.
Former Dispatcher and current New York Times columnist David French also believes that the consequences of leaving Trump on the ballot are greater than disqualifying him. But French agreed that the direction of the bench seemed clear yesterday. “The whole focus was, ‘How do we narrow Colorado,’” he said. “I’m guessing [the decision] will be 9-0, maybe 7-2.”
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