Constitutional law experts, state election officials and a long list of Republican political figures have flooded the U.S. Supreme Court with their views on the Colorado court’s landmark ruling blocking former President Donald Trump from running in the state’s 2024 election under the Civil War-era insurrection clause.
Since the nation’s highest court agreed to hear Trump’s appeal, outside parties have filed hundreds of pages of amicus curiae, or friend of the court, briefs. Colorado Supreme Court ruling of December 18which declared that the Republican presidential frontrunner could not hold office under the 14th Amendment to the Constitution. Section 3 of the amendment prohibits an “officer of the United States” who has taken an oath to support the Constitution and then “participated in insurrection” from holding office again.
About two-thirds of the 47 amicus curiae briefs filed in the case through Jan. 26 were from parties supporting Trump’s appeal, including nearly 200 Republican members of Congress, officials from more than 25 GOP-held states and several of Trump’s former rivals for the Republican presidential nomination.
About a dozen other briefs were officially filed that did not favor either side, though many were intended to support legal arguments made by Trump’s disqualification supporters and to reject theories advanced by Trump’s legal team.
In stark contrast to the hundreds of prominent Republican officials who have spoken out, only one sitting Democratic state or federal official, Michigan Secretary of State Jocelyn Benson, has filed an amicus curiae brief with the court. Benson’s brief low ‘takes no position’ on Trump’s eligibility but asks court to issue decisive ruling on issue of ‘monumental importance’
“Final appeal must come now so that states and their election officials can conduct effective and meaningful elections,” Benson wrote. “Neither of these goals would be served by a decision of this Court that leaves open questions about the proper application of Section 3.”
The briefs filed with the court address nearly every major issue raised in the case since the five-day trial in U.S. District Court in Denver began last October, including whether Section 3 is “self-executing” or requires the enforcement of an act of Congress; whether the January 6 attack on the Capitol amounted to an “insurrection” and whether Trump “participated therein”; and whether the president is an “officer of the United States” within the meaning of Section 3.
District Court Judge Sarah B. Wallace he initially rejected the challenge Trump’s candidacy, supporting the view that Section 3 does not apply to former presidents or the office of president. In a 4-3 decision, the Colorado Supreme Court reversed that ruling, calling that interpretation “inconsistent with the plain language and history” of the amendment.
Conflicting legal theories
Among the parties supporting Trump’s call is the Center for Constitutional Jurisprudence at the Claremont Institute, which has been described as “anti-democratic think tank” and “the nerve center of the American right wing”under the Trump administration.
Attorney John Eastman, a key architect of the former president’s plan to block congressional certification of the 2020 election results on January 6, 2021, is among a number of prominent Trump allies associated with the Claremont Institute. Eastman has been charged along with Trump with alleged conspiracy to invalidate elections by prosecutors from Fulton County, Georgia.
Claremont Institute low was filed by John Yoo, a senior organization official and former federal official best known as the author of the so-called “notes on torture”, legal opinions advising that prisoners in the war on terrorism are not entitled to protections under the Geneva Conventions.
In addition to arguing that the president is not an “officer of the United States,” Yoo in his writing supports the view that Section 3 of the Fourteenth Amendment cannot be enforced without an act of Congress, pointing to Section 5 of the Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
“Courts should look to Congress to enact legislation to enforce Section 5 of the 14th Amendment,” Yoo writes. “However, there is no corresponding congressional legislation here that allows states or private individuals to enforce Section 3.”
But low The brief, filed jointly by eight constitutional law scholars, including Douglas Laycock of the University of Virginia and Deborah Pearlstein of Princeton University, calls that argument “profoundly flawed.” Such an interpretation, they say, violates the Constitution’s Supremacy Clause, which, along with other constitutional provisions, “assigns state officials a central role in enforcing federal law.”
“The Fourth Amendment, to cite just one example, would be a dead letter if state officials and state courts did not enforce it on a daily basis,” the scholars write. “(Trump’s) interpretation of Section 3 is fundamentally inconsistent with the dual sovereignty system in our Constitution.”
Colorado Supreme Court Justice Carlos Samour, who dissented from the court’s Dec. 18 ruling, is among those citing Congress’s lack of legislation under Section 5, arguing in his dissenting opinion that the Origination Clause “is not self-executing, and only Congress has the authority to enact any law to enable it.”
But in another way low Trump’s appeal supporter Seth Barrett Tillman, a constitutional law professor at Maynooth University in Ireland, cautioned Supreme Court justices against making a decision on the self-execution issue, raising the specter of additional challenges to Trump’s eligibility at a later date.
“If the Court finds that Section 3 is not self-executing and requires federal implementing legislation, litigation in Colorado and other state courts will be put on hold. But an important date looms on the horizon for Congress: January 6, 2025,” Tillman writes.
“Can a joint session of Congress determine that electoral votes for an allegedly disqualified presidential candidate are not ‘regularly cast’? There is no clear answer to that question,” his brief concludes. “A ruling that the president is not an ‘officer of the United States’ would authoritatively resolve the Section 3 case against the petitioner.”
The oral hearing in the Supreme Court case will be held on February 8.
