ANDREW MASCIA—Amid looming state caucuses and primaries, states have vehemently sought to remove the 45th President of the United States Donald J. Trump from the 2024 presidential ballot. These efforts are premised on Section 3 of the Fourteenth Amendment, a rarely used constitutional provision ratified after the Civil War. Notably, there is little to no precedent on a cutting-edge dilemma related to the race for the White House. Whether former President Trump may run for presidency is further complicated by the heightened emotions of an election year. Furthermore, on both sides of the political spectrum, cognitive biases are likely to play a role in a layperson’s determination of former President Trump’s eligibility to run for president.
Section 3 of the Fourteenth Amendment provides that “No person shall be a[n] . . . elector of President . . . or hold any office . . . 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 . . . .” Deceptively simple enough, the application of Section 3 of the Fourteenth Amendment to a former president of the United States leaves a breadth of puzzling questions.
The novel constitutional questions are trifold. First, was former President Trump an “officer” of the United States for Fourteenth Amendment purposes during his term as president? Some ponder how could the President of the United States not be considered an “officer”? Meanwhile, on the other hand, textualists argue that a closer read of Section 3 of the Fourteenth Amendment does not delineate former President Trump as an “officer.” Second, as a matter of law, did former President Trump engage in insurrection on January 6, 2021? Over the last four years, there have been zealous arguments on both sides of the political arena with respect to whether former President Trump engaged in insurrection. Third, is the presidency itself an “office” of the United States?
The answers to these questions will significantly impact the trajectory of the 2024 election; they ultimately will determine whether former President Trump is jurisdictionally subject to Section 3 of the Fourteenth Amendment. Even if the U.S. Supreme Court holds that former President Trump falls within the bandwidth of Section 3 of the Fourteenth Amendment, there will still be inevitable legal arguments with respect to whether he engaged in insurrection on January 6, 2021.
On December 19, 2023, in the controversial 4-3 decision Trump v. Anderson, the Colorado Supreme Court ordered the removal of former President Trump from the Colorado state ballot. The Colorado Supreme Court ordered that Trump be disqualified from running for the presidency because of (1) his status as an “officer” of the United States for purposes of Section 3 of the Fourteenth Amendment, and (2) his role in the January 6, 2021, riots at the U.S. Capitol. The court concluded that Trump “engaged in insurrection” in violation of the United States Constitution and that he did so after taking an oath “as an officer of the United States” to “support” the Constitution. Notably, the Colorado Supreme Court stayed its decision pending review from the United States Supreme Court.
On January 5, 2024, the U.S. Supreme Court granted certiorari in Trump v. Anderson. The main question presented is whether “the Colorado Supreme Court err[ed] in ordering [that] President Trump [be] excluded from the 2024 presidential primary ballot.” The Court will hear oral arguments on both sides of the issue on February 8, 2024. If the U.S. Supreme Court holds that the Colorado Supreme Court incorrectly applied Section 3 of the Fourteenth Amendment, then former President Trump’s 2024 presidential campaign will likely continue unharmed. Conversely, if the U.S. Supreme Court upholds the Colorado Supreme Court’s decision, former President Trump’s campaign could be severely damaged, particularly in certain swing states. At best, given the novelty of this legal issue, it is difficult to predict how the U.S. Supreme Court will rule in Trump v. Anderson. However, given the predominantly conservative makeup of the current Supreme Court, there is some reason to believe that the Colorado Supreme Court’s decision will be reversed. Regardless of the outcome, the U.S. Supreme Court will soon resolve these novel constitutional questions surrounding Section 3 of the Fourteenth Amendment, setting a newfound precedent in the race to the White House.
