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There were a lot of questions posed in oral argument last week in Trump v. Anderson. In this well-prepared and well-argued case, a lot of issues jumped out – is the 14th Amendment Sec. 3 “self-executing”? Are states empowered by Section 3 to keep primary voters from choosing a presidential candidate (without asking if a write in effort would be allowed and sufficient to overcome this obstacle)? What is the meaning of “federal office” v. “federal officer” and did the drafters of the 14th Amendment relate to those terms as the original Framers did? And on and on.  So. Many. Questions.

But there was one question which – if it was asked and answered, I missed it – is this: did the petitioner exhaust all remedies below? In other words, is this case ripe for determination in this Court? That question – to me at least – is as important, if not more important, that the ones bandied about by the bench and bar.

The Constitution imposes a disability to anyone holding office who, having previously taken an oath to uphold the Constitution and then having engaged in insurrection. It then offers a remedy: 2/3 of both houses of Congress could vote to remove the disability. Whether that was intended to exclude the office of the presidency aside – there is a remedy in place and this litigant failed to seek to remove the disability prior to arguing his case. This seems to me to be necessary before the other questions make it to the Supreme Court.

Colorado, only for its own Republican primary ballot, declared that Trump has a disability to holding the office if elected and therefore - to protect its constituents from voting for an ineligible candidate- it decided not to place him on the ballot in the Republican primary.  What Trump could have (and I would argue should have) done is seek to lift the disability before taking the case to the high court.

Removal of the disability rabbit hole: If a litigant were to take this course – and I suspect myriad folks in the late 19th Century did take this approach prior to getting elected – would s/he need to admit to the facts of the disability prior to asking for its removal and if so, would that buck up against a Fifth Amendment privilege not to be compelled to self incriminate? Well, no. First, an argument could be crafted to say – “after notice and an opportunity to be heard, this court found me to hold this disability to federal office. I do not agree with it. I do not believe that an insurrection occurred and if one did I do not believe I am liable for it. But, friends in Congress, in order for me to appear on the ballot in Colorado (and/or any and every other state that so concluded), I ask that you vote to remove this disability and allow the voters in Colorado to decide who their Republican candidate should be.” Even if this approach opened up entire warrens of rabbit holes, this opportunity to advance the candidacy existed and it would not infringe on other Constitutionally protected rights.

When the Colorado court ruled that he was ineligible for the Colorado primary ballot, the Court was using the Sec. 3 for guidance but enforcing the state election laws. That is, whether or not Sec. 3 is self-executing, a litigant in Colorado raised the issue, litigated it, and won. Individuals raise and litigate aspects of Sec. 1 of the Fourteenth Amendment literally every single day in every single state which is why the majority of the Bill of Rights has been “incorporated” through the Fourteenth Amendment to apply to the states. (Extra credit to everyone who knew that the Third Amendment has never been incorporated). There is, therefore, evidence that all of the Fourteenth Amendment is self-executing, individual litigants have standing to raise the claim, and state courts have the power to adjudicate the claim.

That appears to address, at least superficially whether the state had the authority to hear this argument and rule on it leaving for the SCOTUS to determine if its ruling was correct – that was the main issue, essentially, in last week's argument. Another question was whether the presidency is even an office subject to section 3. This, too, was asked and it seemed pretty clear that if the office of the presidency were not included that would be well, weird. Given that the electors for the presidency were included, the idea that the president and vice president would not be subject to section 3 is odd. While it is always fun to play with words, the Fourteenth Amendment was written as a treaty – as war reparations – as punishment to the losing side in a bloody, horrible war. Never forget that the Fourteenth Amendment became necessary because people insisted on enslaving human beings and were willing to tear apart a nation and cause the death of hundreds of thousands of people because if that horrific “way of life” and then lost and refused to concede defeat in fact even if they did in law. The reason the Fourteenth Amendment entrusted the federal government over the states is because the states had failed miserably at protecting the rights of their own inhabitants and the federal government – this bears repeating – won the war and got to make the terms of the peace. I think it is safe to say that perhaps with the exception of Justices Alito and Thomas, both of whom love authoritarian ideals and abhor rational thought, all the other Justices – and the litigants – agreed that if the president and vice president were not included in Sec. 3 it would be absurd and lead to a completely incomprehensible result (especially in regard to a demagogue that, frankly, everyone in the 19th Century would have despised – they were less into the cult of personality and more into principles of which Trump has none).

But, putting aside the final determination on those issues, isn’t the first question the one laid out in the same exact section of the Constitution? Isn’t the first question – having been made subject to the disability, is the litigant required to exhaust remedies below before bringing the case before the Court? It is possible that 2/3 of Congress would remove the impediment. Whether Trump agreed with the ruling in Colorado, whether or not he admitted to being an insurrectionist (which, to their credit, the traitors in the 19th Century did admit to being), prior to asking the Court to adjudicate other issues in the case, didn’t he have an obligation under the very section of the Constitution argued to seek to lift the impediment before arguing that the impediment itself was wrong?

In Ross v. Blake, 578 U.S. 632 (2016), the court reviewed language and facts related to an inmate claim under the Prison Litigation Reform Act of 1995. In Ross v. Blake, an inmate, Blake, was assaulted by a prison guard, Madigan, while Ross was present and did not come to Blake’s aid. Blake reported the incident. A review by the internal investigation unit found Madigan responsible and made no determination as to Ross. Madigan resigned in the face of being fired (and lost the lawsuit against him with a judgment of $50,000 for Blake). As to Ross, however, the trial court determined that Blake failed to exhaust every available remedy below as required by the PLRA because he did not take advantage of all administrative procedures prior to filing his claim in federal court. The Court of Appeals for the Fourth Circuit reversed averring special circumstances to allow the litigation. The SCOTUS remanded the case stating that the litigant had to avail himself of all available remedies and it was unclear if this occurred. That is, Blake did not access the administrative procedures, but they may not have been “available” within the meaning of the PLRA especially in light of the internal investigation process. This was a factual matter that had to be resolved in the trial court.

Glover v. St. Louis-San Francisco Railway Company, 393 U.S. 324 (1969) was a labor dispute alleging racial discrimination. The companies moved to dismiss the claim since the petitioners failed to exhaust all of the possible remedies available in the collective bargaining agreement. The lower court dismissed based on this failure to exhaust. However, the petitioners argued that the labor union itself was racially biased and therefore the issues the petitioners had previously raised were all ignored by them. They really had no available remedy left save litigation. The lower courts still dismissed the claim. The Supreme Court reversed. It ruled that the petitioners had sought to exhaust remedies but the problem lay both with the employer and with the union itself leaving these workers with no other recourse since seeking the existing contractual remedies would be an exercise in futility.

While Negre v. Larsen, 394 U.S. 968 (1969) was not granted certiorari, it presented an issue regarding exhaustion of remedies that rankled Justice Douglas. Dissenting from the denial of cert, Justice Douglas laid out the basic facts of the case – during the Vietnam War, Mr. Negre requested status as a conscientious objector ("CO"). He had a hearing in which the hearing officer recommended that status on religious grounds, but the Army rejected it. Negre continued to seek remedies through the military via an appeal, but, at the same time, filed a claim in federal court seeking to enjoin his orders to ship out to battle during the pendency of his military appeal.

Justice Douglas was the single justice on the stay – which he issued. Then the Court refused to hear the claim thereby ending the stay. That meant that a man who did not burn his draft card, who made a valid claim to be a CO, who was recommended as a CO to the war being shipped overseas to fight all because federal courts had made a determination not to interfere with military proceedings as they were in process. Justice Douglas believed there should be some oversight, but he could not convince enough of the remaining justices to agree with him.

All of these cases reflect a basic understanding regarding the ripeness of a case. In normal circumstances, where there is a remedy below, it must be exhausted before the Supreme Court will hear it. At least the litigant has to try to avail himself of the remedy. In this case, there is a remedy that the petitioner did not even try to access which is, in the words of the Constitution itself, “Congress may by a vote of two-thirds of each House, remove such disability.”

Isn’t it the case that once Colorado ruled that January 6, 2021 was an insurrection and that Trump engaged in that insurrection and that, as a former president had taken an oath to protect the Constitution and was, therefore, barred from federal office including the office of the President under Section 3 of the Fourteenth Amendment, Trump could have (and should have) petitioned Congress to hold a hearing in each House to lift the disability? In fact, assuming that Colorado was correct (it was) on the facts determining that Trump was, therefore, ineligible to serve unless 2/3 of the House and Senate lift the impediment, putting aside the very fun academic exercise of playing with the language of the Constitution, isn’t that determination by Congress necessary to occur prior to Trump being able to be sworn in to the office even if he is ultimately elected?

In other words, the issue, it seems, is that there is a constitutional impediment to Trump being sworn in as any kind of federal officer unless and until 2/3 of both Houses lift the disability no matter what else in the world happens. The plain language of section 3 is the deciding factor here – not the Colorado Supreme Court or the Supreme Court of the United States. Without a vote by at least 2/3 of the members of the House of Representatives and the Senate to lift the impediment that a court – any court – has found after a fair hearing with notice and an opportunity to be heard – Trump is ineligible to be president. Therefore, however much fun the argument was last week in Court, the one thing it was not was an actual case in controversy.

It is unclear how anything the Court decides in the Colorado case would change this process. That is, the Court’s ruling whether it be to uphold Colorado’s determination or to reverse it and require Trump’s name to be on the primary ballot will not change the ultimate issue of whether he can be sworn in as president. Trump has been adjudicated to have engaged in insurrection after taking an oath to support the United States Constitution. Section three bars people who fit that description from holding any civil or military office under the United States. The SCOTUS can rule on a million other issues relating to this section of the Constitution, but, unless it goes on a fact-finding mission, it will not upset the factual basis for the ruling below. Therefore, it has no power to lift the impediment imposed by the trial in Colorado. Only Congress can.

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