A new law review article, titled Sweeping Section Three under the Rug: A Comment on Trump v. Anderson, revisits the March 2024 Supreme Court decision that states cannot enforce Section Three of the Fourteenth Amendment (the Insurrectionist Disqualification Clause) against federal candidates seeking to appear on their state ballots. Written by renowned legal scholars William Baude and Michael Stokes Paulsen, the article demonstrates that the Supreme Court abdicated its constitutional duties in declining to enforce (or let Colorado or any other state enforce) Section Three of the Fourteenth Amendment against former president and current Republican candidate Donald J. Trump.  

The article identifies the Supreme Court’s serious and indefensible failure to address Trump’s conduct leading up to the January 6, 2021 attack on the U.S. Capitol. The Court evaded critical questions about Trump’s engagement in violent insurrection, sidestepped settled constitutional principles about federal elections being carried out by the states, and instead required states to ‘underenforce’ Section Three against presidential candidates. As Baude and Paulsen recognize, the Court’s decision was based not on constitutional principle, but on politics: 

The “message Americans should take home” from Trump v. Anderson is that when it wants to, the Supreme Court will find a way to avoid performing its constitutional duties. It will dodge and weave. It will play politics. It will sweep the Constitution under the rug. 

But Baude and Paulsen also recognize that because the Supreme Court dodged the actual issues under Section Three of the Fourteenth Amendment, its decision does nothing to alter the constitutional reality that Trump is disqualified.  For all the reasons provided by the Colorado Supreme Court, the Illinois courts, and the Maine Secretary of State, under the clear terms of Section Three, Trump remains disqualified from serving as president.  No court —and certainly not the Supreme Court— has held otherwise:

The upshot is that Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today. A variety of potential avenues to enforce that disqualification remain. Sweeping Section Three under the rug thus may merely have postponed the day of ultimate constitutional reckoning. 

Free Speech For People was the first organization to bring a legal action under Section Three in over 150 years. It sued in states across the country to keep several insurrectionists, including Trump, off election ballots. In February 2024, a circuit court judge in Illinois ruled in favor of a group of voters represented by Free Speech For People, Hughes Socol Piers Resnick & Dym, and Illinois election lawyer Ed Mullen, that Donald Trump engaged in insurrection and was disqualified from public office.

To read Baude and Paulsen’s new article, click here.  

To learn more about Free Speech For People’s historic Section Three campaign, visit our page here.