US: Supreme Court rules that disqualifying individual under 14th Amendment is for Congress in Trump ‘insurrection’ case
William Roberts, IBA US CorrespondentFriday 8 March 2024
The US Supreme Court has ruled that individual states don’t have authority to keep former President Donald Trump off the ballot in the 2024 presidential election. The Court said that the role of giving effect to Section 3 of the 14th Amendment to the US Constitution – under which Trump had been disqualified from standing in Colorado – continues to lie with Congress.
The decision paves the way for the former President to stand for election in November despite four ongoing criminal cases pending against him and lingering concern over his role in the 6 January 2021 attack by his supporters on the US Capitol. The only other challenger left in the Republican presidential nomination field, former South Carolina governor Nikki Haley, resigned from the contest on 6 March.
In a rare unanimous decision, the nine Supreme Court justices ruled on 4 March that the state of Colorado didn’t have authority to prohibit Trump from standing for national office. A group of voters in Colorado had sought to disqualify Trump under Section 3 of the 14th Amendment to the US Constitution because, they alleged, he had committed insurrection against the government he was sworn to serve.
‘This is one of those rare, unanimous opinions. And that’s in part because of the concern for there being a patchwork of disenfranchisement if they were to rule in favour of Colorado. There was probably also a little undercurrent of the need to show some unity and not divide on political lines,’ says Laura Prather, Scholarship Officer for the IBA North American Regional Forum and a partner at law firm Haynes Boone in Austin, Texas.
This is one of those rare, unanimous opinions. And that’s in part because of the concern for there being a patchwork of disenfranchisement if the Court were to rule in favour of Colorado
Laura Prather
Scholarship Officer, IBA North American Regional Forum
‘Really, it would be a bizarre result if this national issue were decided by different state courts,’ says Matt Kaiser, Senior Vice-Chair of the IBA Criminal Law Committee and a partner at Kaiser Law in Washington, DC. ‘This is a national issue that is a question of federal constitutional law. I heard so much scepticism from the justices about whether this was a viable option that I would just be shocked if they had ruled differently’.
Adopted after the American Civil War in 1868, Section 3, known as the Disqualification Clause, prohibited former Confederate soldiers and politicians who had rebelled against the victorious Union from holding future office.
In September 2023, six Republican and unaffiliated Colorado voters filed a lawsuit in state court alleging Trump had disqualified himself from holding future public office. The plaintiffs argued that Trump had overseen a broad-based effort to unlawfully overturn the 2020 election results and that he incited a violent mob to attack the US Capitol on 6 January in a bid to stop the lawful transfer of power to Biden.
A Colorado state court found that Trump had indeed engaged ‘insurrection’ but ruled through somewhat technical legal reasoning that the President is not an ‘officer’ of the US within the meaning of the 14th Amendment. The Disqualification Clause therefore didn’t apply.
The plaintiffs appealed and the Colorado Supreme Court ruled in December that the President is an ‘officer’ of the US, reversing the lower court’s constitutional ruling while upholding the finding of fact on ‘insurrection’ and concluding Trump should be barred from the ballot.
But in oral arguments before the US Supreme Court, the discussion shifted. ‘The overarching concern […] appears to be this disenfranchisement issue: what happens if we allow this to go forward and we have inconsistent results among the states,’ Prather says. ‘The most persuasive part of that argument was the fact that the Enforcement Act of 1870 gave the Department of Justice the power to bring lawsuits to disqualify federal officials. And so, why would we further give that ability to states to do on a case-by-case basis.’
In a 13-page per curiam opinion, the justices reasoned that allowing states to enforce Section 3 for federal candidates would create a ‘patchwork’ in which Trump could be barred in some states but not others. ‘Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders,’ the Supreme Court ruled. However, Congress probably won’t take such action in respect of Trump given its current composition.
The Court didn’t rule on the underlying question of whether Trump had committed insurrection as his lawyers had requested.
Noah Bookbinder, President of Citizens for Responsibility and Ethics in Washington, DC, a watchdog group that helped bring the Colorado case, was quick to note that the Court had not exonerated Trump. ‘Every court – or decision-making body – that has substantively examined the issue has determined that January 6th was an insurrection and that Donald Trump incited it,’ Bookbinder says. Trump, for his part, has denied he is an insurrectionist.
The constitutional focus shifts now to Trump’s claim of blanket presidential immunity in the federal criminal case pending against him for the 6 January attack on the US Capitol. Trump’s lawyers have claimed the former President is immune from prosecution because the alleged crimes were part of his official duties. Oral argument in the Supreme Court on this claim is scheduled for 25 April.
Trump faces four counts of criminal conspiracy and obstruction in US District Court for the District of Columbia for attempting to overthrow President Joe Biden’s 2020 election victory. Trump denies any wrongdoing in the case. The trial had originally been scheduled to begin on 4 March but has been delayed as a result of the Supreme Court taking up the question of Trump’s immunity. District Judge Tanya Chutkan and the DC Appeals Court had rejected Trump’s immunity claim.
Historically, US courts have held presidents liable for criminal conduct while in office, in the same way as other government officials would be. A decision by the high court to grant Trump immunity would be a stark reversal of established law.
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