WASHINGTON (CN) — As the Supreme Court weighs whether to allow states to use a constitutional mechanism to remove former President Trump from their primary ballots, a group of Republican lawmakers told the high court Thursday that such power should be squarely in the hands of Congress.
Minority Leader Mitch McConnell and House Speaker Mike Johnson joined 177 other Republican members of Congress in filing an amicus brief with the Supreme Court, in which they asked the justices to strike down a ruling by Colorado’s high court which disqualified Trump as a primary contender in the Centennial State.
The decision, which came down late last year, relied on a provision in Section 3 of the Constitution’s 14th Amendment. Known as the insurrection clause, the measure bars anyone who has “engaged in insurrection or rebellion” against the U.S. from holding public office. The Colorado Supreme Court found Trump’s role in the Jan. 6, 2021, Capitol riot violated the insurrection clause.
That decision, Republican lawmakers told the Supreme Court Thursday, “severely intrudes” on congressional powers over the insurrection clause.
“Congress — not any state court — plays a vital role in regard to Section 3,” the Republicans said in the brief.
The lawmakers argued the insurrection clause can only be enforced by an act of Congress, pointing to language in the 14th Amendment’s fifth section that gives Congress the power to enforce its provisions through legislation.
“In other words, Section 3 enforcement mechanisms are left to Congress,” the lawmakers said, “not to a patchwork of state officials and courts.”
The Republicans pointed out that disqualifying a presidential candidate under Section 3 authority would be an “extraordinarily harsh” action and as such Congress is the best vehicle for permitting such action because it represents the country’s “various interests and constituencies.”
Allowing Congress to have the final say on ballot eligibility would also allow for “a factfinding process” that could define exactly how a person engages in insurrection, the lawmakers added.
The group of Republicans also told the Supreme Court that Colorado’s decision does not apply to former President Trump, contending that the president is never considered “an officer of the United States” as defined in the insurrection clause.
The lawmakers argued that the Constitution distinguishes between government officers and the president, and that the president’s oath of office does not mention “’supporting’ the Constitution.”
“The court need only conclude that the president is not ‘an officer of the United States,’” the Republicans said in the brief.
They urged the Supreme Court to reverse Colorado’s decision, arguing that allowing it to stand would “supercharge state officials to conjure bases for labeling political opponents as having engaged in insurrection.”
“In polarized times, it is easy to cast an opponent’s rhetoric about the outcome of elections as encouraging others to obstruct the peaceful transfer of power,” the lawmakers wrote. “When partisan state officials believe so much is at stake, they may go to great lengths to interfere with the ordinary democratic process.”
The Supreme Court is scheduled Feb. 8 to hear its first oral arguments in the Colorado case.
The GOP’s brief with the high court comes just days after a group of Senate Republicans unveiled legislation that would make the Supreme Court the final arbiter for interpreting ballot eligibility on constitutional grounds.
Under the proposed measure, challenges to a candidate’s qualifications would be subject to a fact-finding effort by a federal district court, which would then transmit its findings to the Supreme Court for a determination. The bill would also deny federal funds for election administration to states where officials unilaterally declare a presidential candidate unfit for office.
Soon after the Colorado Supreme Court booted Trump off the state’s primary ballot in December, Maine Secretary of State Shenna Bellows followed suit, stripping the former president from the Pine Tree State’s own primary election. Other states, such as Michigan and Minnesota, have refused to take similar action.
Follow @BenjaminSWeiss
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
