Constitutional law experts, state election officials and a long list of Republican politicians are among those who have flooded the U.S. Supreme Court with their views on a landmark Colorado ruling that bars former President Donald Trump from running in the state in 2024 based on a Civil War-era insurrection clause.
Hundreds of pages of amicus curiae briefs – or “friend of the court” briefs – have been filed by outside parties since the nation’s highest court agreed to hear Trump’s appeal of the ruling. Colorado Supreme Court ruling of December 18which found that the Republican presidential candidate was ineligible for office under the 14th Amendment to the Constitution. Section 3 of the amendment prohibits an “officer of the United States” who has sworn an oath to support the Constitution and then “engaged in an insurrection” from holding office again.
About two-thirds of the 47 amicus curiae briefs filed in the case as of Jan. 26 came from parties supporting Trump’s appeal, including nearly 200 Republican members of Congress, officeholders in more than 25 Republican-controlled states and several of Trump’s former rivals for the Republican presidential nomination.
About a dozen other briefs have been filed officially in support of neither party, but many of them aim to bolster the legal arguments of those supporting Trump’s disqualification and to reject theories put forward by Trump’s legal team.
In stark contrast to the hundreds of prominent Republican officials who have voiced their opinions, only one sitting Democratic official at the state or federal level, Michigan Secretary of State Jocelyn Benson, filed an amicus curiae brief in court. Benson’s meager “takes no position” on Trump’s eligibility, but asks the court for a final decision on an issue of “monumental importance.”
“There must now be a final decision so that states and their election officials can conduct efficient and meaningful elections,” Benson wrote. “Neither of those purposes would be served by a decision by this Court that leaves open questions about the proper application of Section 3.”
The briefs submitted to the court touch on nearly every major issue raised in the case since the five-day trial in Denver District Court began last October. They include whether Section 3 is “self-executing” or requires an act of Congress to enforce it; whether the Jan. 6 attack on the Capitol amounted to an “insurrection” and whether Trump was “participating” in it; and whether the president is an “official of the United States” within the meaning of Section 3.
District Judge Sarah B. Wallace initially rejected the challenge on Trump’s candidacy and supported the view that Section 3 did not apply to former presidents or the office of the president. In its 4-3 decision, the Colorado Supreme Court overturned that ruling, calling such an interpretation “inconsistent with the plain language and history” of the amendment.
Legal theories in conflict
Among the parties supporting Trump’s appointment is the Center for Constitutional Jursprudence at the Claremont Institute, which is known as “Anti-democratic think tank” and a “Nerve center of the American right“ under Trump.
Attorney John Eastman, a key architect of the former president’s plan to prevent Congress from certifying the 2020 election results on January 6, 2021, is one of many prominent Trump allies associated with the Claremont Institute. Eastman was charged along with Trump with a alleged conspiracy to annul the election by the prosecutors in Fulton County, Georgia.
The Claremont Institute meager was submitted by John Yoo, a senior fellow of the organization and former federal official who is best known as the author of the so-called Torture MemosLegal opinions pointing out that prisoners in the “war on terror” are not entitled to the protection provided by the Geneva Convention.
In his brief, Yoo not only argues that the President is not an “officer of the United States,” but also supports the view that Section 3 of the 14th Amendment cannot be enforced without an act of Congress. He points to Section 5 of the amendment, which states: “Congress shall have power to enforce the provisions of this article by appropriate legislation.”
“The courts should look to Congress to enact enforcement laws under Section 5 of the 14th Amendment,” Yoo writes. “But there are no relevant congressional laws here that allow states or private individuals to enforce Section 3.”
But one meager A joint filing by eight constitutional lawyers, including Douglas Laycock of the University of Virginia and Deborah Pearlstein of Princeton University, calls that argument “completely false.” Such an interpretation, they argue, violates the Constitution’s supremacy principle, which, along with other constitutional provisions, “assigns state officers a central role in enforcing federal law.”
“To give just one example, the Fourth Amendment would be a dead letter if state executive officers and courts did not enforce it on a daily basis,” the researchers write.[Trump’s] The interpretation of Section 3 is fundamentally contrary to the system of dual sovereignty of our Constitution.”
Colorado Supreme Court Justice Carlos Samour, dissenting from the court’s Dec. 18 ruling, is among those who denounced the lack of congressional legislation under Section 5. In his dissent, he argued that the Insurrection Clause “is not self-enforceable and that only Congress has the authority to pass any enabling legislation.”
But in another meager Seth Barrett Tillman, a professor of constitutional law at Ireland’s Maynooth University, supported Trump’s appeal and warned the Supreme Court justices against deciding the case based on the question of self-execution, as this would risk challenging Trump’s eligibility at a later date.
“If the court finds that Section 3 is not self-enforcing and that federal law is needed to enforce it, litigation in Colorado and other state courts would grind to a halt. But in Congress, an important date is looming on the horizon: January 6, 2025,” Tillman writes.
“Can the joint session of Congress find that electoral votes for an allegedly disqualified presidential candidate are not ‘regularly cast’? There is no clear answer to that question,” his brief concludes. “In contrast, a finding that the President is not an ‘officer of the United States’ would conclusively resolve the Section 3 case against Plaintiff.”
Oral arguments in the Supreme Court case are scheduled for February 8.
The Story first appeared in Colorado News LineRead more about her coverage of Trump’s 14th Amendment case Here.
