The Colorado case at the U.S. Supreme Court on whether section 3 of the Fourteenth Amendment disqualifies Donald Trump from returning to the presidency hinges most especially on this question: whether, as Trump’s brief puts it (at 40), Congress possesses the “exclusive means of enforcing section 3.” Not surprisingly, Trump answers this question yes: “congressional implementing legislation is the only way that section 3 may be enforced” (id. at 39). 

The brief makes what is essentially a policy argument in support of this position. Calling section 3 “antidemocratic,” Trump argues that “questions of candidate eligibility” “should not be resolved” by “state judiciaries” because “are always politically charged and inevitably affected by a court’s opinion of the candidate.” 

This policy argument is dubious for several reasons:

First, I have explained elsewhere that section 3, far from being antidemocratic, might actually enable a majority of voters to elect the candidate they most prefer (by preventing a political party’s primary elections from being dominated by an ineligible candidate, thereby blocking out the party’s runner-up, whom the November general election’s voters would prefer over the partisan primary voters’ choice).

Second, whether or not state courts can be trusted to decide impartially the section 3 issue in this case is irrelevant because the U.S. Supreme Court, and not state courts, will have the last and conclusive judicial word on the applicability of section 3 to Trump. Trump’s brief does not dispute any of the underlying facts upon which the Colorado courts determined that he had “engaged” in “insurrection” within the meaning of section 3. Instead, Trump’s argument on the merits—and it is a plausible one—is that as a matter of law these facts cannot amount to a conclusion that he is disqualified by section 3. But if the U.S. Supreme Court agrees with Trump on this point, it is of no concern that state judges in Colorado or elsewhere might be improperly biased against Trump. 

Third, surely the most partisan body for deciding the section 3 issue is Congress itself. If the U.S. Supreme Court rules that only Congress can enforce section 3, that ruling will invite Democrats in Congress to attempt to disqualify Trump on January 6, 2025, when Congress convenes to count the electoral votes (assuming that Trump has won the election). As explained in the amicus brief filed on behalf of Rick Hasen, Ben Ginsberg, and me, a congressional effort to disqualify Trump after the voters cast their ballots and he emerged the winner would appear to him and his supporters as an especially egregious power grab and thus risk especially dangerous civic unrest. 

In a thoughtful Washington Post column, Jason Willick takes issue with our brief’s assessment of the danger if the Court “punts” the section 3 question to Congress. He thinks it unlikely that Democrats would succeed in disqualifying Trump, in part because it’s unlikely that they can hold the Senate at the same time that Trump wins an Electoral College majority. He also thinks that the Court will do great damage to itself if it decides the merits of the section 3 issue either way. “The best course for the Supreme Court,” Willick writes, “is probably to protect its own institutional interests and hope that the elected branches can heal themselves.”

While recognizing that Willick has a point, I still weigh the balance of competing considerations differently. For one thing, I worry more about the damage to the country as a whole from Congress becoming embroiled with the issue of Trump’s eligibility after voters have voted than I do about the Court needing to protect its own self-interest. The Court can recover from any damage to its reputation that its decision on the merits of the section 3 issue might cause. I don’t know if the Constitution—and the Republic itself—could survive a fight in Congress on January 6, 2025, over whether or not Trump is entitled to be inaugurated again two weeks later. 

I agree with Willick that Democrats are very unlikely to hold the Senate if Trump wins the Electoral College. But three Republican senators who voted to convict Trump in his second impeachment trial for instigating the insurrection will presumably still be serving in the Senate on January 6, 2025. If it is easy to argue, as Willick acknowledges, that a congressional vote “to convict Trump for insurrection in 2021” should lead to the same conclusion in 2025, then there will be great pressure on these three GOP senators to adhere to their previous vote—unless the Court holds section 3 inapplicable to the office of the presidency, which (it is important to say here) is a way the Court can rule on the merits of section 3’s applicability to Trump without wading into the messy matters of what constitutes “engag[ing]” in insurrection.” In this respect, there is a crucial difference between the Constitution’s impeachment clauses, which explicitly apply to presidents, from section 3’s disqualification provision, which does not. Thus, the Court could make clear that a senator’s vote to convict Trump in 2021 has no bearing on his status under section 3; but if the Court doesn’t render this judgment on the merits of section 3’s applicability to Trump, then Democrats in Congress will be free to argue to their colleagues that their 2021 vote on Trump’s culpability for the insurrection should carry over to 2025. 

Ultimately, however, my assessment of the relative risks involved in this very precarious Colorado case does not depend on congressional Democrats being successful in persuading enough House and Senate colleagues to disqualify Trump. As long as it remains an open possibility between November and January, the momentum of public agitation over the issue could build to the proverbial boiling point and—to mix metaphors—topple completely out of control. To be sure, as Willick observes, there’s a chance that some congressional Democrats would attempt to defy a ruling from the Supreme Court that section 3 does not disqualify Trump. But I think it is extremely unlikely that many Democrats would endeavor to do so. Enough Democrats believe in the rule of law and the necessity of the Court being the arbiter of the Constitution’s meaning in our legal system that, as a practical matter, an effort by some diehard Democrats to muster support for blocking Trump’s inauguration would fizzle out before it ever gained any steam.  Thus, to my mind, it is far better for the Court to decide the merits of the section 3 question now, whichever way the Court rules on it, than for the Court to leave it open for Congress to consider itself empowered to disqualify Trump after the election.

But whatever one’s views of this comparative risk analysis, there remains the question whether or not Trump’s brief is correct that the Constitution permits only Congress to enforce section 3. In advancing its policy argument, Trump’s brief overlooks the relevance of Article II, which explicitly empowers state legislatures to determine the “manner” of appointing presidential electors, and the Court already has ruled that this Article II power encompasses legislation dictating how a state’s electors cast their electoral votes. The question, then, is whether the Fourteenth Amendment should be construed as divesting state legislatures of the Article II power they otherwise would have to prevent their electors from voting for an ineligible presidential candidate. Trump’s brief doesn’t address this crucial question at all. (Nor do amicus briefs in support of Trump, including those of Republican members of Congress, former Attorneys General, and the Republican National Committee.) 

I won’t repeat here what our amicus brief says on this key issue. I will note instead that Derek Muller’s own amicus brief also explains at length why state legislatures have Article II power to create adjudicatory procedures for determining whether or not a presidential candidate is disqualified by section. As Derek’s brief says (at 3), “a state legislature is permitted under the United States Constitution to provide mechanisms for the review of the qualifications of presidential candidate and for the exclusion of ineligible candidates.” His brief goes on to detail the many circumstances in which states have chosen to exercise this Article II—and when they have chosen not to, as is also within their Article II power. (Another amicus brief from a group of law professors similarly argues that states are empowered to enforce section 3.)

Derek’s brief refutes the point, made in many briefs supporting Trump, that because section 3 is not “self-executing” there must be congressional legislation to enforce it. On the contrary, as Derek explains (at 13), “election officials certainly hold no independent authority to go forth and investigate the qualifications of candidates without express legislative authorization.” But it hardly follows from this proposition that state legislatures are disabled from exercising their Article II power to provide the necessary procedures to adjudicate a disqualification issue. 

Neither Trump’s brief nor the briefs of his amicus supporters address the history that I’ve discussed concerning Clement Vallandigham, which supports the proposition that states have Article II authority to enact procedures to adjudicate whether a presidential candidate is disqualified by section 3. Vallandigham’s status under section 3 was debatable, just as Trump’s is. The possibility that the Senate would disqualify him if he were elected a U.S. Senator from Ohio was a reason why Ohio’s legislature chose not to elect him. Reconstruction was a period in history when state legislatures were empowered to elect U.S. Senators just as they were (and still are) empowered choose the manner of appointing presidential electors. Had Vallandigham been the Democratic party’s presidential nominee in 1868, just as states would have had Article II authority to force their electors to vote for Vallandigham if he won the popular vote in the state (see Chiafalo), so too would state have had Article II authority to forbid their electors from voting for Vallandigham if—but only if—the state’s courts adjudicated him disqualified by section 3 of the newly ratified Fourteenth Amendment.

While our brief brought the relevance of Vallandigham to the Court’s attention, other amicus briefs made different historical points. The NAACP Legal Defense Fund’s brief, reviewing the post-Reconstruction period in which the Court refused to enforce the Fourteenth and Fifteenth Amendments according to its terms and purposes, warned the Court against a similar failure to enforce section 3 of the Fourteenth Amendment. 

The Amar brothers, Akhil and Vik, both constitutional law scholars, in their amicus brief invoke the circumstances surrounding the 1861 joint session of Congress, which counted the electoral votes that made Lincoln president. As Jon Meacham has described in his recent Lincoln biography (chapter 16), intending an obvious parallel to the 2021 joint session of Congress, there were serious fears that Southern secessionists would attempt to sabotage the electoral count, thereby preventing Lincoln from officially becoming president. The Amar brief endeavors to link these fears with other treasonous pro-Confederate activities, including by members of President Buchanan’s cabinet, during the period between Lincoln’s election and his inauguration. 

In particular, the Amar brief focuses on John Floyd, Buchanan’s secretary of war, a Virginian who later joined the Confederate army but while he was still in Buchanan’s administration moved munitions from North to South so that they could fall into the hands of the Confederates. The Amar brief claims that Floyd’s treason was part of the same conspiracy that sought to derail the counting of electoral votes in the joint session of Congress: “The insurrectionary betrayals perpetrated by Floyd and other top officials in the lame-duck Buchanan Administration … involved, through both actions and inactions of Floyd and his allies, efforts to prevent President-elect Lincoln from lawfully assuming power at his inauguration.” Id. at 9 (emphasis in the original). The Amar brief wants the Court to view “Floyd’s misconduct” as “remarkably similar” to “[t]oday’s facts]” involving “Donald Trump, according to the facts as found by the court below in this case.” Id. at 3, 16.

I fear their brief overstates its point. It is certainly true that Floyd betrayed his oath to the Constitution while serving as secretary of war. But Floyd resigned his position in Buchanan’s cabinet on December 29, 1860—more than six weeks before the joint session’s electoral count, which was on February 13, 1861 (with March 4 as the date for Lincoln’s inauguration). I am aware of no evidence, and the Amar brief cites none, that specifically links Floyd to any plot to block the congressional counting of Lincoln’s electoral victory (or otherwise prevent his inauguration).

Moreover, as much as there were genuine and reasonable fears of a conspiracy to derail the electoral count, none ever materialized. Henry Dawes, a member of Congress charged with investigating the matter, subsequently summarized: “No conspiracy to prevent the counting of the electoral vote and declaring Mr. Lincoln elected was discovered in Washington, if one ever existed there.” General Winfield Scott fortified the Capitol with extra guards to ward of any interference with the electoral count. As Dawes later described, “Happily there was no occasion to call upon [these reinforcements]. The count and declaration of Mr. Lincoln’s election proceeded without interruption.”

Modern accounts of the period between Lincoln’s election and his inauguration describe various plots to assassinate him or even to seize all of Washington, D.C. for the Confederacy. See, for example, Harold Holzer, Lincoln President-Elect: Abraham Lincoln and the Great Secessionist Winter, 1860-1861 (2008), and Ted Widmer, Lincoln on the Verge: Thirteen Days to Washington (2020). But it stretches the historical record, as I understand it, to say that Secretary of War Floyd was part of a conspiracy to block the congressional counting of Lincoln’s electoral victory in the same way that the Colorado courts found Trump involved in the storming of the Capitol to block the congressional counting of Biden’s electoral victory. (Neither Holzer’s nor Widmer’s discussion of Floyd’s treason extend beyond his movement of munitions from North to South, before he resigned on December 29, and do not mention him at all in connection with fears over the counting of electoral votes on February 13.)

 An understanding of the relevant history will be important to the U.S. Supreme Court’s resolution of the Colorado case involving Trump. There is plenty of relevant history worth considering in order to understand the relationship of section 3 of the Fourteenth Amendment to the Article II power of state legislatures over the state’s presidential electors. For example, Vice President John Breckinridge—who, after faithfully counting Lincoln’s electoral votes on February 13, betrayed his oath to the Constitution by joining the Confederacy—was a paradigmatic example of a high-level official in Buchanan’s government who was disqualified by section 3, as Breckinridge himself knew well when his many supporters urged him to get back into politics during Reconstruction. One need not embellish this history by singling out Secretary of War Floyd and ascribing to him even more than his evident misdeeds warrant.