Trump v. Anderson and Enforcement of the Insurrection Clause (Disqualification Clause)

prev | next

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.

Reversing the Colorado Supreme Court’s decision in Anderson v. Griswold,1 the United States Supreme Court held, per curiam, in Trump v. Anderson, that states cannot determine a candidate’s eligibility for federal office under Section 3 of the Fourteenth Amendment.2 In Anderson v. Griswold, the Colorado Supreme Court had held former President Donald J. Trump to be “disqualified from holding the office of President under Section Three” 3 of the Fourteenth Amendment on the grounds that he had “engaged in insurrection.” 4 As a consequence, the Colorado Supreme Court held that the Colorado Secretary of State could not include President Trump’s name on Colorado’s 2024 presidential primary ballot.5

In reaching its decision in Trump v. Anderson, the U.S. Supreme Court observed that Congress “enjoys power to enforce the Amendment through legislation pursuant to Section 5” of the Fourteenth Amendment,6 and reasoned that Section 5 grants Congress alone the authority to provide for the enforcement of Section 3 against federal officeholders and candidates.7 The Court noted, however, that states retain concurrent authority to enforce Section 3 with respect to state offices.8

1: Anderson v. Griswold, 2023 CO 63
2: Trump v. Anderson No. 23-719, slip op. at 6 (U.S. Mar. 4, 2024) ( “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the President.” ).
3: Anderson v. Griswold, 2023 CO 63
4: Id. at 221 ( “We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection.” ).
5: Id. at 257 ( “[B]ecause President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot.” ). After the Supreme Court agreed to review the case, the Colorado Secretary of State, however, announced that President Trump’s name would appear on the primary ballot. Secretary of State Jena Griswold Certifies 2024 Colorado Primary Election Ballot, State of Colo. News Release (Jan. 5, 2024).
6: Trump v. Anderson No. 23-719, slip op. at 7 (U.S. Mar. 4, 2024).
7: Id. ( “The terms of the [Fourteenth] Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.” ). See U.S.CONST. amend XIV, § 5 ( “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” ).
8: Trump v. Anderson No. 23-719, slip op. at 6 (U.S. Mar. 4, 2024) ( “We conclude that States may disqualify persons holding or attempting to hold state office.” )(emphasis retained).