Nearly 180 Republican lawmakers in Congress have signed on to an amicus brief to the U.S. Supreme Court, urging justices to bar states from determining for themselves whether former President Donald Trump is eligible to run for office again.
The Colorado state Supreme Court, as well as Maine Secretary of State Shenna Bellows, have determined that Trump is in violation of Section 3 of the 14th Amendment to the U.S. Constitution, which forbids a person from serving in any office if they previously gave an oath to the Constitution but later engaged in insurrection or aided people who did. Such individuals can only be made eligible to serve once more through a two-thirds vote of Congress.
Republican lawmakers, led by Sen. Ted Cruz of Texas and House Majority Leader Steve Scalise of Louisiana, have signed on to an amicus brief, a filing to the Supreme Court by parties who are not involved in litigation but who express an interest in a case’s outcome. Other notables who signed on to the brief include Speaker of the House Mike Johnson (R-Louisiana) and Senate Minority Leader Mitch McConnell, who previously expressed the belief that Trump was responsible for encouraging an attack on the U.S. Capitol building on January 6, 2021.
Oral arguments for the case are set to take place on February 8.
The Republicans’ amicus brief calls for the U.S. Supreme Court to overrule Colorado’s Supreme Court decision, and to state that Trump is eligible to appear on the ballots of all 50 states and Washington, D.C. in the upcoming primaries and 2024 general election contest, should he win the GOP nomination. The brief does so using dubious reasoning, claiming that Congress alone “controls the enforcement” of who is or isn’t eligible under the Constitution’s insurrection clause.
That assertion runs counter to historical standards. While Congress has voted in the past to determine if certain individuals were insurrectionists, federal and state courts have also played a role in deciding a person’s eligibility.
The brief also downplays Trump’s actions during the January 6 attack, portraying him as calling for “peaceful” demonstrations from his supporters when the attack at the Capitol began.
“It is hard to imagine an actual insurrectionist quickly asking for peace and encouraging disbandment,” the brief states.
That assertion misrepresents what actually happened on the day of the attack. Trump did issue a tweet calling for his supporters to “remain” peaceful, but it came well after the violence had already started. And although his speech preceding the attack included the word “peace,” he also utilized incendiary rhetoric, urging his loyalists to descend upon the Capitol and telling them to “show strength” against legislators there.
According to his aides’ accounts, Trump didn’t even author the tweet himself, and “was just not interested” in quelling the attack as it unfolded. Indeed, Trump “gleefully” watched the attack on television when he returned to the White House, and used the opportunity to try to convince more Republican lawmakers in Congress to vote against certifying President Joe Biden’s 2020 election victory. He also rejected requests from his advisers to call off the mob of his loyalists for several hours.
Trump’s actual request for the “disbandment” of the mob came more than three hours after the attack began, during which he said, in a video message, that he “loved” those who took part in the violence.
None of those facts appear in the amicus brief that the 179 Republicans submitted to the Supreme Court.
Other amici briefs have been filed to the Supreme Court urging the justices to reject claims made by Trump’s lawyers and by Republicans supportive of him. The NAACP Legal Defense and Educational Fund, for example, also filed a brief this week, noting that the 14th Amendment was part of a series of “Reconstruction Amendments” that were “enacted to ensure that the worst abuses in our nation’s history are not repeated and to achieve the fullest ideals of our democracy.”
“Those Amendments are effective only when those responsible for applying them have the courage to do so,” the NAACP’s amicus brief adds. “Unfortunately, for decades after Reconstruction, this Court lacked that courage. … This Court now has the chance to learn from that history, and to ensure that our nation does not replicate the grave mistakes of the late 19th and early 20th centuries.”
A brief from several constitutional law professors similarly rejects Trump’s and Republicans’ arguments, including the notion that Congress has the sole authority to determine ballot eligibility for a presidential candidate.
“Petitioner’s claim of exclusive congressional authority is astoundingly broad,” those constitutional experts stated, adding that many provisions within the document prove that claim to be false.
Said the constitutional professors:
Article II grants state governments the power to appoint presidential electors ‘in such Manner as the Legislature thereof may direct.’ The Tenth Amendment reserves to the States powers ‘not delegated to the United States.’ The power to regulate the jurisdiction of state courts is unquestionably one of those powers reserved to the states. The combination of the Article II power over presidential elections and the reserved power to regulate state courts means that state legislatures may confer jurisdiction on state courts to decide questions of presidential eligibility, at least in the absence of any federal legislation preempting state law.
A recent ABC News/Ipsos poll suggests that most Americans would be supportive of a Supreme Court ruling deeming Trump ineligible to run for president. That poll found that just 39 percent of Americans think the Court should rule that Trump is eligible for every ballot in the United States. Meanwhile, 30 percent of voters believe the Court should remove Trump from every ballot in the country, while 26 percent believe states should do so individually, indicating that 56 percent of voters would be fine with a decision that blocks Trump from either some or all ballots during the 2024 GOP primaries and general election race.