Balkinization: A User’s Guide to Trump v. Anderson, Part Nine: Ten Arguments that Petitioners Haven’t Raised (or that Trump Only Invoked Late in the Game)

A User’s Guide to Trump v. Anderson, Part Nine: Ten Arguments that Petitioners Haven’t Raised (or that Trump Only Invoked Late in the Game)

Marty Lederman

I’m working now on the final of my substantive posts (Part Eight), about the First Amendment/voting right “off-ramp” argument that might well be the strongest such argument (though it’s received the least attention from the parties).  Because the oral argument is tomorrow morning, however, I thought it might be useful to post tonight my list of arguments that have been part of public or academic discussion but that neither of the petitioners have raised in the Supreme Court (or, in two cases, that Donald Trump appears only to have raised in his reply brief).

Here they are:

“Merits” arguments about why Donald Trump is eligible to serve again as President that Petitioners have not raised (or that Trump only raised in his reply brief)

1.     That Section 3 of the Fourteenth Amendment doesn’t cover insurrections and rebellions after the Civil War, and/or that it’s no longer operative because of desuetude.

2.     That one or both “amnesty” laws Congress enacted in 1872 and 1898 are prospective in operation and that therefore Section 3 has no effect.  [As I note in this post, this view of the amnesty statutes, albeit mistaken, might have been the impetus for Congress repealing the 1870-enacted misdemeanor statute in 1909 and the 1870-enacted quo warranto provision in 1948.  See also Baude/Paulsen at pp. 11-16; Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022).]

3.     That Section 3 is not “self-executing” in the strong sense that it does not impose a disqualification on holding any office unless and until Congress enacts a law saying so.  [More on this issue in this post; see also part I of Kim Roosevelt’s amicus brief.]

4.     That the President isn’t an “officer” at all for purposes of Section 3 (or elsewhere in the Constitution).  [See this post.]

5.     That the presidency is not an “office, civil or military, under the United States” for purposes of the first, “Positions” Clause of Section 3.  [Arguably Trump has obliquely preserved this argument in his briefs, though he does not try to defend it and his argument is in considerable tension with it.  More here.]

6.     That the January 6 violence at the Capitol did not amount to an “insurrection.”  [Trump revives this argument in a single sentence in his reply brief:  “The events of January 6 were not an ‘insurrection,’ as they did not involve an organized attempt to overthrow or resist the U.S. Government.”  I have a bit on this argument here.]

7.     That even if it was an insurrection, and Trump incited the violence and/or aided in its commission, that still does not amount to “engaging in” the insurrection.  [Trump clearly makes this argument in his reply brief, however—see the three paragraphs on pp. 17-18.]

“Off-Ramp” Arguments that would result in reversal of the Supreme Court of Colorado without adjudicating Trump’s eligibility that Petitioners have not raised

8.     That whether Trump is eligible is a “political question” that can’t be answered by any courts because of a textually demonstrable constitutional commitment of the issue to a coordinate political department or the lack of judicially discoverable and manageable standards for resolving it. [Trump raised a variation of this in his cert. petition--he argued there (see pp. 19-22) that questions of presidential qualification are reserved for Congress. Presumably because it's inconsistent with arguments in his substantive brief (especially the Sea Clammers argument), and because I assume he wants to reserve the argument that the Joint Session of Congress on January 6, 2025 may not disregard Trump electoral votes on Section 3 grounds, he dropped this argument in his merits briefs.]

9.     That the Colorado District Court acted unconstitutionally because it did not comply with deadlines prescribed by Colorado law.

10.   That the Colorado District Court denied Trump due process.

* * * *

In addition, the plaintiffs (i.e., the Anderson Respondents) have not raised questions of mootness and the Court’s statutory jurisdiction, though the Court should have to assure itself on both of those jurisdictional questions. I discuss them here.

* * * *

Complete series of my posts on Trump v. Anderson:

Introduction

Part One: Why the U.S. Supreme Court Might Resolve the Case Even Though Its Decision Probably Won’t Affect the Colorado Presidential Primary Election Ballot

Part Two: The Three Possible, but Less-than-Ideal, Dispositions of the Case

Part Three: Two Important Things All the Parties Get Wrong, and One Other Important Thing They Don’t Address

Bruce Ackerman Misunderstands My Point About What Colorado is Doing and May Do [UPDATED to respond to Bruce's follow-up post]

Part Four: Trump’s Argument That His Tenure as President Did Not Subject Him to Section 3 Because the President is Not an “Officer of the United States”

Part Five: Trump’s Argument That He Did Not Engage in an Insurrection

Part Six: The Two “Off-Ramp” Arguments Based Upon Griffin's Case that Would Allow the Supreme Court to Avoid Deciding Whether Trump is Eligible to be President

Part Seven: Trump’s Two Remaining “Off-Ramp” Arguments: (i) That Colorado has Implemented a De Facto Extraconstitutional Presidential Qualification, in Violation of Term Limits v. Thornton; and (ii) That Colorado has Abused its Article II Authority to Appoint Presidential Electors in a “Manner” that Colorado Law Doesn’t Authorize

Part Eight: The First Amendment/Right to Vote/Federalism-Based "Off-Ramp" Argument that Might Carry the Day