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Can the Constitution Hold Presidents Accountable?

Section 3 and it’s affect on President Trump and the Ballots

Published September 30, 2024

Analysis written by Sara Hegde


Historically, the 14th Amendment is known for its stipulations on due process and equal protection, but many don’t know that it also tells us how to deal with insurrectionists. Section 3 of the 14th Amendment specifically outlines how to deal with government officials that engage in insurrection, or in appealing to insurrectionists. Section 3 is careful in its wording, providing confusion on whether it applies to sitting presidents or not. The Colorado Supreme Court decided in Anderson v. Griswold that Section 3 gave them the power to prevent former President Trump from appearing on the Colorado Republican presidential primary ballot. This decision affected only the state of Colorado, and presumably didn’t need interference from the U.S. Congress. This ruling was then picked up by the Supreme Court of the United States in Trump v. Anderson. The judges did not take a stance on whether former President Trump qualified as someone who committed insurrection, but whether a state can influence a candidate’s ability to run for federal office under a different section, Section 5 of the 14th Amendment.


The defense took guidance from an 1869 decision known as Griffin’s Case, a case that was not decided by the Supreme Court, but by a district court in Virginia. Here, the district court decided that Section 3 of the 14th Amendment is not "self-executing" and that its dealings with eligibility of holding office can only be applied by the U.S Congress. Supreme Court Justice Sonia Sotomayor argued that because Griffin’s Case is not a Supreme Court case, it shouldn’t be used as precedent, to which Supreme Court Justice Brett Kavanaugh said that there can still be “intention and meaning extracted from it.” Trump v. Anderson has no Supreme Court precedent to draw from, and by applying a district court case, the U.S Supreme Court is enforcing the possibility that district court cases may be used to supplement future decisions. 


There is one big hole in Section 3: it only mentions the president-elects, not sitting presidents. In the oral arguments of Trump v. Anderson, Supreme Court Justice Ketanji Brown Jackson interprets Section 3 with an originalist approach – when the drafters of the 14th Amendment wrote Section 3, they weren’t concerned with the Presidency, they were concerned about officers infiltrating from the bottom, not with officials at the top during the American Civil War. Section 3 also names officers of the United States as those who cannot engage in insurrection. This sparked a different debate on whether the President qualifies as an officer, or if the Presidency being an office makes the President an officer, one that hasn’t yet been resolved. Disregarding the exact wording of Section 3, it’s ultimately unrealistic to allow any single state to remove candidates from the ballot. Uniformity of the states in federal elections is more important than their individual autonomy, something that the Supreme Court justices agreed on, and planned to enforce using Section 5 of the 14th amendment. This amendment essentially gives Congress the power to enforce old or implement new legislation how they want to, and in this case, it involves state authority in federal elections.


The final ruling of the Supreme Court of the United States was that states do not have the authority to decide if candidates for federal office, including the presidency, are eligible or not. The decision says that state actors do have the ability to determine eligibility for state officials under Section 3, but not for a federal office. The Supreme Court Justices upheld the power of the U.S. Congress to enforce Section 5 of the 14th Amendment that gives them specifically the discretion to implement legislation, not states. The SCOTUS justices were unanimous in their decision, but Justices Jackson, Sotomayor, and Kagan wrote an opinion together regarding the implementation of Section 5, law that had not been previously called upon in the case. The three justices asserted that the Court made decisions extraneous to the case at hand, by generalizing their decision with the inclusion of Section 5. The original case was not seeking an answer for whether states had the power to remove Federal candidates from a ballot, it was deciding if President Trump was included as a government official that cannot commit insurrection under Section 3. The Justices went one step further by using Section 5, essentially determining that in any future case where states involvement in Federal elections comes up, Section 5 automatically applies. Decisions made in the abstract, to answer questions not yet appearing before the court, limit avenues for future cases and possibly go beyond outlined judicial power. Even more interestingly, Supreme Court Justice Amy Coney Barrett wrote an additional opinion wherein she partially agreed with Justices Jackson, Sotomayor, and Kagan but reiterated that an image of unity among the Justices was more important in “the volatile season of the Presidential election.”


“Anderson v. Griswold.” Justia Law, December 2023. https://law.justia.com/cases/colorado/supreme-court/2023/23sa300.html

“Fourteenth Amendment Section 3.” Constitution Annotated. Accessed September 19, 2024. https://constitution.congress.gov/browse/amendment-14/section-3/.

“Trump v. Anderson and the Enforcement of the Insurrection Clause.” Constitution Annotated, March 4, 2024. https://constitution.congress.gov/browse/essay/amdt14-S3-2/ALDE_00000070/\

“Trump v. Anderson Oral Arguments.” Supreme Court of the United States, February 8, 2024. https://www.supremecourt.gov/oral_arguments/audio/2023/23-719

“Trump v. Anderson.” Oyez, March 4, 2024. https://www.oyez.org/cases/2023/23-719


 
 
 

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