Supreme Court oral arguments Thursday could shed light on what’s at stake for Congress in a case about a Colorado decision to bar Donald Trump from appearing on the state primary ballot based on the 14th Amendment.
The justices last month agreed to take up the issue but did little to clarify which of the numerous legal arguments might ultimately shape their opinion in an historic election dispute.
Several possible decisions could leave Congress with an opening to weigh in on Trump’s eligibility, legal experts say, including the possibility of a partisan showdown as Congress counts electoral ballots in January 2025.
While the justices aren’t expected to rule Thursday, their discussion will give the public insights into their thinking.
The focal point in the litigation is Section 3 of the 14th Amendment, which aims to prevent people who previously took an oath to support the Constitution from holding office if they have “engaged in insurrection.”
The justices will consider a ruling from the Colorado Supreme Court, which cited Trump’s conduct in the lead-up to and during the Jan. 6, 2021, attack on the Capitol, and found he was disqualified from the presidency under the 14th Amendment and should not appear on the ballot.
Several arguments made in the case offer the Supreme Court an opportunity to defer the dispute to a different branch of government, said Derek T. Muller, a law professor at the University of Notre Dame who focuses on election law.
“All of them are ways for the court to shift responsibility to another branch and to say, ‘We’re not going to deal with it now,’” Muller said. “And it leaves open questions for resolution, or maybe indeterminacy, in the weeks and months ahead.”
Trump’s name will still appear on the Colorado primary ballot because of this appeal, but his attorneys argued that the state decision could “likely be used as a template to disenfranchise tens of millions of voters nationwide.”
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IMPLEMENTING LEGISLATION
Trump and Republican members of Congress have argued in briefs that the 14th Amendment requires Congress to approve “implementing legislation” to authorize enforcement of Section 3.
The Colorado Republican Party also has backed that argument that the so-called insurrection clause is “not self-executing,” which means that Congress must pass a law to permit individuals to sue under the provision.
A Supreme Court decision that sided with that argument would leave it to Congress to pass such a bill before anyone — Trump as well as other candidates in future elections — could be barred from holding office under the 14th Amendment.
The political realities on Capitol Hill make that exceedingly unlikely during this presidential campaign, but the question would remain open going forward.
A brief from Texas Sen. Ted Cruz, House Majority Leader Steve Scalise of Louisiana and 177 other Republican members of Congress states that the enforcement legislation “is not an empty formality” and disqualification under the section is an “extraordinarily harsh result.”
“The Fourteenth Amendment’s own text confirms that Congress, representing the Nation’s various interests and constituencies, is the best judge of when to authorize Section 3’s affirmative enforcement,” their brief reads.