Unprecedented Questions: Trump's Eligibility and the 14th Amendment's Reach
On February 8th, the Supreme Court convened to hear oral arguments in a landmark case: Trump v. Anderson. The case revolves around whether former President Donald Trump is eligible for primary and general election ballots under the Constitution’s Insurrection Clause. Trump v. Anderson stands as an appeal of the Colorado Supreme Court ruling, which found Trump ineligible for the White House under Section 3 of the 14th Amendment — the seldom-invoked Insurrection Clause — and subsequently removed him from the state’s presidential primary ballot. This marks the first time in history that the Insurrection Clause has been invoked to disqualify a presidential candidate, setting the stage for an unprecedented legal clash. The outcome of this case carries profound implications for the ongoing presidential election and the broader political landscape. As the Supreme Court justices deliberate, they are tasked with deciphering the meaning, extent, and authority of the Insurrection Clause — a decision that will undoubtedly shape the course of this election and establish a significant precedent regarding the powers of the executive and the balance between federal and state authority.
In a contentious 4-3 decision, the Colorado Supreme Court decided to remove former President Trump from the state’s primary ballot following the filing of a lawsuit by a group of six individuals in September 2023. The litigants included four Republicans and two unaffiliated voters who alleged that Trump should be disqualified from office under the insurrection clause due to his role in inciting the January 6th, 2021 attack on the Capitol. The group petitioned the Court to block the Colorado Secretary of State from including Trump’s name on the ballot. The Court sided with the petitioners, affirming that Trump’s actions indeed constituted insurrection, and determined that the insurrection clause applied to the office of the president, thereby rendering Trump ineligible for the White House and the primary ballot. The Colorado Supreme Court’s decision overturned the ruling of the district court judge, who acknowledged Trump’s incitement of insurrection, but decided that it was unclear whether the Insurrection Clause applied to the presidency. Donald Trump appealed the decision to the Supreme Court, prompting the State to pause their ruling pending a resolution by the higher court.
In the wake of the Civil War, Congress passed the 14th Amendment. The Insurrection Clause was included to prevent former Confederate officials from returning to service in government. The section states:
“No person shall … hold any office, civil or military, under the United States, …, who, having previously taken an oath, … as an officer of the United States, … 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.”
In plain language, this provision dictates that individuals who have sworn allegiance to the Constitution and subsequently engaged in insurrection are barred from holding public office. However, Congress can vote to remove this disqualification. The Insurrection Clause was primarily used before the enactment of the Amnesty Act in 1872, which pardoned Confederate officials and allowed them to hold office.
In 1869, a case provided the first major opinion on the Insurrection Clause. Caesar Griffin, a Black criminal defendant, sought to overturn his criminal conviction on the grounds that his trial judge, who had fought for the Confederacy, should have been disqualified from serving as a judge. Chief Justice Salmon Chase, sitting as circuit judge, refused to vacate, finding that the text of Section 3 was not self-executing and instead could only be enforced through an act of Congress. This precedent, seemingly detrimental to Colorado’s case, was contradicted by Chase’s own ruling in a separate case months before. In 1868, Jefferson Davis, the former president of the Confederacy, faced treason prosecution and contended that the Insurrection Clause was self-executing and thus barred further treason charges against him. In this instance, Justice Chase concurred with Davis and his argument that the section “executes itself”. These conflicting rulings prompted Congress to pass enforcement legislation to bar former Confederates from holding office. However, the question about the self-enacting nature of the section remains. In September 2022, the Insurrection Clause was invoked once again when a state court judge in New Mexico ruled that Couy Griffin, a county commissioner, should be removed from his position and prohibited from holding any political office due to his participation in the January 6th riot, during which Griffin illegally entered Capitol grounds.
The Supreme Court must now decide for themselves on the scope and authority of the Insurrection Clause. The constitutional questions the Court must answer to decide whether the Colorado decision should stand are whether Donald Trump engaged in insurrection on January 6th, whether the Insurrection Clause covers the presidential office, and whether the constitutional provision possesses self-enacting force or necessitates legislative action from Congress. Additionally, the Court must ascertain the appropriateness of state-level ballot removal as the means of implementing the disqualification. Based on the oral arguments given and the questions posed by the Justices, it seems that the Supreme Court is unlikely to uphold Colorado’s decision, but it is not yet fully clear what grounds they will rule on. The Court also currently has a 6-3 conservative majority, further casting doubt on the possibility of a ruling upholding the Colorado decision. To the question of whether Trump engaged in insurrection, Jason Murray, representing the Colorado voters, argued that Trump betrayed his oath to the Constitution by inciting a mob to attack the Capitol in an attempt to stop the counting of electoral votes. Jonathan Mitchell, the Texan attorney representing Trump, contended that the events of January 6th constituted a riot rather than an insurrection as the event was not an organized effort to overthrow the government. While Mitchell’s argument does not align with Trump’s personal statements, the Court did not question his arguments. Instead, the justices gravitated towards other pivotal questions regarding the application and interpretation of the Insurrection Clause, largely accepting the premise that Trump's involvement in the events of January 6th warrants examination within the context of insurrection.
Regarding the inquiry into whether the Insurrection Clause encompasses the presidential office, the justices expressed skepticism. Ketanji Brown Jackson raised a pertinent question, querying that if the drafters of the Amendment meant for it to include the presidency, “why didn’t [they] put the word president in the very enumerated list in Section 3?”
The crux of the oral arguments revolved around the question of whether the Insurrection Clause possesses inherent self-enacting authority, allowing states to unilaterally enforce its provisions, and whether the removal of Trump’s name from the ballot is the right way of implementing disqualification. Mitchell argued that the section is not self-enacting, citing the Caesar Griffin case. However, Justice Sotomayor stated that Justice Chase contradicted his own ruling, and argued that the Griffin case failed to establish a precedent for the Supreme Court. Justice Kagan asked what Mitchell’s argument would be without Griffin, and Mitchell conceded that without this precedent, it would be much more difficult to prove that the section requires federal legislation as every other provision of the 14th Amendment is treated as self-executing.
Despite the possibility of the Insurrection Clause being construed as self-enacting, the Justices raised significant concerns regarding the manner in which Colorado sought to enforce this provision, questioning states’ authority to disqualify a presidential candidate. Chief Justice Roberts articulated an originalist perspective, asserting that vesting such power in states contradicts the fundamental principles underpinning the 14th Amendment and represents a departure from the interpretation of the text at the time. Given that the Amendment aimed to curtail state authority and empower the federal government against the states, granting states unilateral discretion in matters of presidential eligibility runs counter to the spirit of the Amendment. Justices also mentioned the nationwide implications of a president’s eligibility, emphasizing the idea that a single state should not have the ability to make these decisions for the entire nation. This approach of disqualification at a state level could lead to chaotic and fragmented state action across the country. The Justices called into question whether the disqualification of a presidential candidate can only be effectuated through legislative action by Congress.
Jonathan Mitchell further argued that even if Trump were to be disqualified under the Insurrection Clause, the removal of his name from the ballot constitutes an improper method of implementing the disqualification mandated by the 14th Amendment. The Insurrection Clause explicitly prohibits individuals from holding office but not from running or being elected. Moreover, the clause allows Congress to lift the disqualification by a two-thirds majority vote and thus, Mitchell contented, states cannot declare a candidate ineligible when the possibility of a congressional waiver remains viable post-election. Justice Kavanaugh echoed similar sentiments, emphasizing that removing Donald Trump from the ballot could potentially disenfranchise voters, depriving them of their right to support their preferred candidate. In response, Jason Murray, the lawyer for Colorado cited historical precedent: in 1868, the governor of Georgia refused to certify the results of a congressional election under the Insurrection Clause.
The Supreme Court appears poised to scrutinize Trump v. Anderson primarily on the questions of the self-enacting nature of the Insurrection Clause of the 14th Amendment and the extent of states’ authority to remove a presidential candidate from the ballot. The case will undoubtedly have far-reaching implications, setting precedent that will reverberate across the nation. Depending on the Supreme Court’s ruling, the cases are likely to extend to other states grappling with similar questions of Trump’s eligibility. States such as Illinois and Maine are monitoring the outcome, with similar legal battles to Colorado unfolding. The decision rendered by the Supreme Court will not only shape the trajectory of the current presidential election but also inform broader legal debates surrounding presidential immunity, the powers of the executive branch, and the balance of federal and state authority.
Sylvie Watts is a sophomore at Brown University, concentrating in political science and computer science. You can reach her at sylvie_watts@brown.edu.
Kourtney Beauvais is a sophomore at Brown University, concentrating in Applied Math and International and Public Affairs. She is an editor for the BULR and can be contacted at kourtney_beauvais@brown.edu.