WASHINGTON – Is the president an officer of the United States?
How the Supreme Court answers that seemingly simple question may determine if former President Donald Trump can return to the White House.
Is “officer of the United States” a term of art that refers in the Constitution to appointed officials, like cabinet secretaries and the leaders of sometimes obscure government agencies, as Trump’s lawyers argue? Or does it mean anyone who holds a federal office, which would subject even former presidents to the anti-insurrection provision of the 14th Amendment?
That’s a top issue the justices will tangle with Thursday when they hear Trump’s appeal to the Colorado Supreme Court’s ruling that Trump disqualified himself by ginning up the mob that rioted at the U.S. Capitol on Jan. 6, 2021.
Four of the five reasons Trump has given the justices to overturn that decision would extend beyond the Colorado case, likely putting an end to similar challenges across the country.
One would apply only to Colorado.
And if a majority of justices reject all of Trump’s arguments? Other states would be free to toss him from the ballot, depending on each state’s election laws.
That would unleash “chaos and bedlam,” Trump’s attorneys have told the court.
Attorneys for the six Republican and unaffiliated voters challenging Trump’s eligibility in Colorado say the nation already witnessed, on Jan. 6, 2021, the bedlam Trump caused when he refused to accept his re-election defeat. The Constitution makes him ineligible from being in a position to do so again, they’ve told the court.
Their case hinges on a section of the 14th Amendment enacted after the Civil War to bar from office those who engaged in insurrection after previously promising to support the Constitution. The clause says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Here are the reasons Trump says the 14th Amendment can’t keep him off the 2024 ballot and why the other side disagrees.
The president is not an “officer of the United States”
Trump’s top argument is Section 3 of the 14th Amendment simply doesn’t apply to the presidency or to him, specifically.
The provision bars entry to “any office, civil or military, under the United States,” to someone who has previously taken an oath “as an officer of the United States” to “support the Constitution.”
Trump may have held the office of president, but he is not an “officer of the United States” as that term is used in the Constitution, his lawyers argue.
Also, Trump did not promise to “support” the Constitution, when he was sworn into office, as do members of Congress and others. Instead, presidents promise to “preserve, protect, and defend” the Constitution. (Trump, the only person without government or military experience to have been elected president, also never swore an oath to support the Constitution in a prior office.)
And while Section 3 names various government positions – such as senators and representatives – it does not mention president. Why, Trump’s lawyers argue, would the drafters of the amendment have included low-ranking military officers and even presidential electors without specifically mentioning the nation’s most prominent office if they wanted that provision to apply to the president?
The other side counters that it defies common sense to think the amendment’s authors wanted to protect the Constitution from every oath-breaking insurrectionist except the person who is both head of the executive branch and commander-in-chief. That was clear from the debate over the amendment when it was ratified in 1868, attorneys for the Colorado voters argue.
The natural meaning of “officer of the United States” is anyone who holds a federal office, they say, something the president has been called since the founding of the nation. And swearing to “defend” the Constitution is at least as demanding, if not more, than promise to “support” it.
Trump did not “engage in insurrection”
Trump never told his supporters to enter the Capitol, and he did not “lead, direct, or encourage any of the unlawful acts that occurred at the Capitol,” his lawyers argue.
He has never been criminally charged with insurrection, “despite the relentless and ongoing investigations of President Trump,” they wrote.
(The federal indictment against Trump accuses him of conspiring to illegally overturn the 2020 election. In Georgia, he’s been charged with election racketeering for trying to interfere with the state’s presidential election. In 2021, the Senate acquitted Trump on an impeachment charge of inciting an insurrection at the Capitol on Jan. 6.)
`There was no insurrection’: Trump tells Supreme Court to keep him on the ballot
Lawyers for the Colorado voters contend Section 3 is not a criminal penalty and doesn’t require a criminal conviction on insurrection charges.
They also argue Trump is wrong to say he can’t have “engaged in” insurrection unless he personally committed violent acts.
“Leaders rarely take up arms themselves,” they wrote in a filing. “It would make no sense to adopt a legal standard that gives a free pass to those—like Trump here—most responsible for an insurrection.”
Colorado voters to Supreme Court Don’t give Trump the power to unleash more `mayhem’
Only Congress should decide how Section 3 can be enforced
The 14th Amendment empowers Congress, not state courts or state officials, to enforce the ban, Trump argues. Legislation is needed because Section 3 doesn’t set up a process for determining if someone has “engaged in insurrection,” they say.
The other side counters that, historically, states enforced Section 3 without congressional direction and the Constitution gives states broad power to limit the presidential ballot to candidates who are eligible to hold that office.
Section 3 only prohibits someone from holding office, not running for office
The amendment doesn’t bar an oath-breaking insurrectionist from running for office, only from holding an office, Trump argues. Even if a candidate doesn’t qualify at the time of an election, they could by the time of inauguration because the amendment gives Congress the ability – by a two-thirds vote in each chamber − to remove the disqualification before the term begins.
That means it’s ultimately up to Congress to decide whether the provision should prevent someone from holding office, Trump argues.
But the fact that Congress was given the power to remove the ban proves that it was enforceable as soon as the amendment was ratified, lawyers for the Colorado voters counter.
Waiting to decide Trump’s eligibility until tens of millions of Americans have voted is a recipe for mass disenfranchisement and a constitutional crisis, they wrote.
Colorado law doesn’t allow the state to order Trump’s removal
Colorado’s election law allows state courts to intervene in ballot disputes only to correct or prevent an error, Trump argues. Colorado’s secretary of state won’t be doing anything wrong by putting Trump on the ballot because Section 3 doesn’t apply to candidates, only officeholders, his lawyers say.
The other side counters that states have broad authority to regulate presidential elections and can exclude candidates who aren’t eligible under the Constitution. Section 3 applies to Trump unless two-thirds of the House and two-thirds of the Senate vote to exempt him, they wrote.
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This article originally appeared on USA TODAY: Donald Trump’s Supreme Court appeal is focused on these 5 arguments