Some Thoughts on How Supreme Court Could Decide 14th Amendment

There have been passionate commentaries and debates about whether Section 3 of the 14th Amendment of the U.S. Constitution bars former President Donald Trump from running for the office of President, and whether States can decide to bar him from being listed on the ballot as a candidate for the office of President. 

On February 8, 2024 the U.S. Supreme Court heard oral arguments on whether the State of Colorado has the authority to bar Donald Trump from the ballot in Colorado based on Section 3 of the 14th Amendment. There have been speculations and prognostications about how the Supreme Court will rule in the case involving Colorado’s decision to bar the listing of Donald Trump as a candidate for the office of President. As a retired lawyer, I will give my opinion on how the U.S. Supreme Court can issue a narrowly crafted decision that resolves the case without embroiling itself in the political controversy about the meaning and legal significance of the events that occurred at the U.S. Capitol on January 6, 2021. 

When I was in law school (1975-1979), it was typical for law students to be taught to expect that courts would usually (1) decide each case on the narrowest legal grounds pertinent to the specific facts of the case at hand, (2) avoid addressing constitutional issues beyond what was strictly necessary to decide the specific case at hand, and (3) avoid making findings or reaching conclusions about issues or matters that are not strictly required to decide the specific case at hand. Although some courts would stray from those principles on occasion, my experience as a lawyer was that those principles were not abandoned or repudiated by courts in general. 

Keeping those legal principles in mind, I believe the U.S. Supreme Court can issue a narrow decision concerning Colorado’s decision to bar Donald Trump from the Colorado ballot along the following lines: 

(1) The Supreme Court could decline to make any definitive statement or pronouncement about the meaning and legal significance of the events that occurred at the U.S. Capitol on January 6, 2021 because it is not necessary for the Supreme Court to do so in order to decide whether States have authority to make determinations under Section 3 of the 14th Amendment. 

(2) The Supreme Court could decide that Section 5 of the 14th Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”) means that the States do not have the authority or power to enforce Section 3 of the 14th Amendment unless Congress has enacted legislation that specifically and explicitly grants such authority to the States. 

(3) Since the Colorado Supreme Court did not identify any federal law enacted by Congress that specifically and explicitly grants States authority to enforce Section 3 of the 14th Amendment, the Colorado Supreme Court had no authority to bar Donald Trump or any other candidate from the ballot in Colorado based on Section 3.

(4) Because Section 5 of the 14th Amendment refers to Congress enforcing the 14th Amendment through legislation, the Supreme Court need not take a position or express any opinion on the specific findings and conclusions reached by the House Select Committee on January 6 Attack on the U.S. Capitol. Why? Because any actions by the Senate, by the House of Representatives, or by a Congressional committee — standing alone — do not constitute legislation under Article I of the U.S. Constitution, and therefore, such actions cannot be deemed to be Congressional enforcement of the 14th Amendment under Section 5. 

My comments are not intended to be a prediction about how the U.S. Supreme Court will ultimately rule in the appeal from the Colorado Supreme Court decision. My comments are intended to suggest how the U.S. Supreme could issue a legally narrow decision that resolves the case without embroiling itself in the political controversies over the meaning and legal significance of the events that occurred at the U.S. Capitol on January 6, 2021.