What the 14th Amendment says about whether Trump can be on the ballot

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This week the Supreme Court considers its most consequential case involving a presidential election since Bush v. Gore in 2000. Officials in both Colorado and Maine have ruled that Donald Trump is ineligible for their ballots because he violated Section 3 of the 14th Amendment — by engaging in insurrection on Jan. 6, 2021. The Supreme Court will review the Colorado decision, with oral arguments set for Thursday. (Maine has effectively put its own case on hold as it awaits a ruling on Colorado.)

So what are the points of contention that will decide this issue? Let’s look at the relevant parts of the 14th Amendment and break down what Trump has said about why those who would use the amendment to keep him off the ballot are wrong, what the Colorado courts have said, and what past cases say that may inform the Supreme Court’s ruling.

Section 3

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 States1, 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 States2, shall have engaged in insurrection3 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.

Section 5

The Congress shall have power to enforce4, by appropriate legislation, the provisions of this article.

1. Is the president an officer?

What Trump says: This doesn’t apply to him because the president is not an “officer of the United States,” and the presidency is not an office “under the United States.”
His legal team’s brief notes that “officer of the United States” appears several other times in the Constitution, in contexts that exclude the president. In one instance, it says the president must “Commission all the Officers of the United States.” The impeachment clause mentions the president “and all civil Officers of the United States,” which Trump’s team argues indicates “officers” doesn’t inherently include the president.
What the other side says: Those who filed suit in Colorado say in their brief that, because the Constitution cites the presidency as an “office” approximately 20 times, it follows that the president is an “officer.” It also cites examples of the founders and other historical figures understanding the president to be an “officer.”
What the courts have said: A district judge in Colorado agreed with Trump. She was the first to find that Trump engaged in insurrection, but she ruled he wasn’t disqualified because Section 3 didn’t apply to presidents.
District Judge Sarah B. Wallace wrote that, “when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional.” She also cited an earlier draft of the 14th Amendment, which included an explicit mention of the “office of the President.” She said that “certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified.”
The Colorado Supreme Court disagreed. It said the traditional understanding of an “officer” included the president. It also cited contemporaneous debate over the amendment’s drafting. When one senator suggested the language would allow rebels to be “elected President or Vice President of the United States,” another responded: “Let me call the senator’s attention to the words ‘or hold any office, civil or military, under the United States.’ ” The objecting senator was satisfied.
Relevant precedents
  • United States v. Mouat. In 1888, the Supreme Court said that unless a person serving “holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.”
  • Floyd Acceptances. In 1868, the same year the 14th Amendment was ratified, this Supreme Court precedent cited “officers in this government, from the President down to the most subordinate agent,” suggesting that the president is indeed an officer.
  • U.S. Term Limits, Inc. v. Thornton. In 1995, the court noted that “the Constitution treats both the President and Members of Congress as federal officers.”

2. Does the president take a different oath?

What Trump says: The president doesn’t qualify here either, Trump’s brief says, because presidents take a different oath from others — to “preserve, protect and defend” the Constitution, rather than “support” it.
What the other side says: That “defend” is analogous to “support.” “If anything, the President’s oath is more demanding than mere ‘support,’ ” said the Colorado plaintiffs. They noted that 19th-century presidents “repeatedly gave speeches acknowledging that their presidential oaths imposed a duty ‘to support’ the Constitution.” Trump himself, on Jan. 6, 2021, said while talking about Vice President Mike Pence: “We’re supposed to protect our country, support our country, support our Constitution and protect our Constitution.”
What the courts have said: Wallace again sided with Trump, finding that this also indicated the drafters did not intend to include the president. She wrote that, while the presidential oath “encompasses the same duties as an oath to support the Constitution,” the language refers to an oath taken by others.
The Colorado Supreme Court again disagreed, finding that the presidential oath is one to “support” the Constitution. It cited how Article VI of the Constitution says “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Because the president is an officer of the United States, it said, his oath is to support the Constitution.
Relevant precedents
  • West Virginia University Hospitals, Inc. v. Casey. There is little in the way of courts weighing in on whether the presidential oath is one to “support” the Constitution. But Trump’s team cites this 1991 Supreme Court decision, which said, “The best evidence of congressional purpose is the statutory text, which cannot be expanded or contracted by the statements of individual legislators or committees during the enactment process.” It says that because the presidential oath is described differently, it must be assumed the 14th Amendment refers to a different oath.

3. Did Trump engage in an insurrection?

What Trump says: His actions don’t amount to engaging in insurrection. Trump’s brief notes that he has never been charged with that specific crime, even as he faces many criminal charges. It notes parts of Trump’s Jan. 6 comments that urged peacefulness.
It also contends that, even if you cite his failure to quickly quell the riot, “mere failure to act would not constitute ‘engagement’ in insurrection.” And it says the courts shouldn’t rely on the idea that Trump used coded language, comparing that argument to “claims that President Trump has powers of telepathy.”
What the other side says: Trump’s actions and words — explicit and implicit — make clear he intended for his supporters to storm the Capitol. He directed them to the Capitol after inflaming them with false claims of voter fraud, knowing that they were willing to engage in violence for him.
The Colorado petitioners cite how Trump previewed the Jan. 6 protest as something that would “be wild.” They also note that the “most inflammatory parts of his speech were not in his prepared remarks.”
Finally, they cite how Trump resisted urging his supporters to be peaceful after the riot touched off. He even attacked Pence on Twitter long after being informed of the violence.
What the courts have said: The Colorado district court ruled that Trump did engage in insurrection. The judge said he “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.” She said Trump “cultivated a culture that embraced political violence” and that his inaction showed he “intended for the crowd to engage in violence when he sent them to the Capitol ‘to fight like hell.’ ” She also said Trump’s Pence tweet directly “caused further violence at the Capitol.”
The Colorado Supreme Court agreed. It said that Trump’s “actions constituted overt, voluntary, and direct participation in the insurrection.”
Relevant precedents
  • Brandenburg v. Ohio. In 1969, the Supreme Court ruled that states cannot punish abstract advocacy for violence or lawbreaking; the speech must be “directed [at] inciting or producing imminent lawless action” and be “likely to incite or produce such action.”
  • NAACP v. Claiborne Hardware Co. In this 1982 incitement case, the court said that previous evidence “could be used to corroborate” evidence of “wrongful conduct.”
  • Hess v. Indiana. This 1973 decision suggested that courts can look to “evidence, or rational inference from the import of the language” to determine if “words were intended to produce, and likely to produce, imminent disorder.”

4. Is Congress required to enforce it?

What Trump says: Section 5 of the 14th Amendment shows that Section 3 is not “self-executing” — in other words, that it requires Congress to determine how it is to be enforced. And his brief says that, because Congress has not conferred such power on state courts and officials, they don’t have the authority to exclude candidates from the ballot by invoking it.
Congress did lay out enforcement mechanisms in the years after passage of the 14th Amendment, but they were repealed.
What the other side says: The Supreme Court itself has said the 14th Amendment is self-executing. And other constitutional amendments have also been found to be self-executing, even when they similarly gave Congress enforcement power. “Nothing in its text or history suggests Section 3 is somehow different in this respect from all other provisions of the Reconstruction Amendments,” the plaintiffs’ brief says.
What the courts have said: The Colorado district court said it was self-executing. It said that “states can, and have, applied Section Three pursuant to state statutes without federal enforcement legislation.” It added that, even before Congress enacted enforcement legislation in 1870, Section 3 “was enforced by various entities.”
The Colorado Supreme Court added that “while Congress may enact enforcement legislation pursuant to Section Five, congressional action is not required to give effect to the constitutional provision.”
Colorado Supreme Court Justice Carlos Samour Jr. disagreed. He noted that there is an enforcement mechanism for disqualifying someone who is convicted criminally of engaging in insurrection, 18 U.S. Code § 2383. “Had President Trump been charged under section 2383,” Samour wrote, “he would have received the full panoply of constitutional rights that all defendants are afforded in criminal cases.”
Relevant precedents
  • In re Griffin. In 1869, Supreme Court Chief Justice Salmon P. Chase ruled that Section 3 was not self-executing. But Chase was sitting as a circuit judge at the time, rather than ruling from the Supreme Court.
  • City of Boerne v. Flores. In 1997, the Supreme Court said, “As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing.”
  • Civil Rights Cases. In 1883, the court said that the 14th Amendment “is undoubtedly self-executing, without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.”
  • South Carolina v. Katzenbach. In 1966, the court said that the 15th Amendment, which includes virtually the same language as Section 5 of the 14th Amendment, “is self-executing.”

The burden in the case that the Supreme Court takes up this week appears to lie with those who would remove Trump from the ballot. Trump could avoid this outcome even if he succeeds on only one of the several relevant questions. From there, a big question is what the ruling would mean for the 2024 election.

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Illustration by Anna Lefkowitz; Jabin Botsford/The Washington Post. Editing by Mary Jo Murphy, Betty Chavarria and Sarah Frostenson. Copy editing by Jamie Zega.