[This post is co-authored with Professor Seth Barrett Tillman]
Trump v. Anderson is scheduled to be argued on February 8, 2024. The deadline for topside briefs was yesterday, January 18, 2024. President Trump filed his deserves temporary. And greater than forty amicus briefs have been filed. Most of them have been filed in help of Petitioner, however a handful have been filed in help of neither celebration. On this submit, we’ll present an outline of about thirty of the amicus briefs. And we’ll accomplish that in a reasonably expeditious trend: by reproducing the tables of contents. A great tip for regulation college students: skimming the TOC ought to present a exact overview of how a short will proceed. Of those thirty-odd briefs, a couple of dozen expressly argue that the President is just not an “Officer of the United States.” We record the amicus temporary within the order through which they have been filed.
I. The president is just not an “officer of the United States”
II. President Trump didn’t “engage in insurrection”
III. Part 3 must be enforced solely via Congress’s chosen strategies of enforcement
IV. Part 3 can’t be used to disclaim President Trump entry to the poll
V. The Colorado Supreme Courtroom violated the Electors Clause and the Colorado Election Code
Filed on 1/9/24
Temporary amicus curiae of Professor Seth Barrett Tillman
I. Plaintiffs’ Requested Aid is Barred by Griffin’s Case (1869)
A. Griffin’s Case is persuasive authority that settled the that means of Part 3
B. Choices from Louisiana and North Carolina are in step with Griffin’s Case
C. The Colorado Supreme Courtroom engaged in improper hypothesis about Chief Justice Chase’s motives
D. Griffin’s Case is in step with the deeply rooted sword-shield dichotomy in federal courts’ jurisprudence
II. In 1788, 1868, and right now, “Officer of the United States” within the Structure extends completely to appointed positions and to not elected positions
A. Within the Structure of 1788, the President didn’t maintain an “Office … under the United States”
B. Within the Structure of 1788, the President was not an “Officer of the United States”
C. In 1868, the President was not an “Officer of the United States” within the Structure
D. There’s a custom of authority from the Judicial and Government Branches demonstrating that the President is just not an “Officer of the United States”
Filed on 1/11/24
Temporary amicus curiae of Landmark Authorized Basis
I. THE COLORADO SUPREME COURT’S BROAD INTERPRETATION OF SECTION THREE WOULD ENABLE PARTISAN OFFICIALS TO DISQUALIFY POLITICAL OPPONENTS BY UNILATERALLY DECLARING THEM INSURRECTIONISTS
II. THERE IS NO PRIVATE CAUSE OF ACTION TO ENFORCE THE DISQUALIFICATION CLAUSE
A. The textual content of the Fourteenth Modification suggests Part Three is just not self-executing
B. Historical past, case regulation, and congressional motion all exhibit that Part Three is just not self-executing
C. Construing Part Three as self-executing additionally contradicts the intent and function of the Fourteenth Modification as a instrument to extend federal energy
D. There is no such thing as a battle between the aid requested by Donald J. Trump and Hassan v. Colorado
III. THEN-PRESIDENT TRUMP DID NOT INCITE JANUARY 6TH PROTESTORS TO ENGAGE IN INSURRECTION
Temporary amicus curiae of Vivek Ramaswamy
I. President Trump’s opponents have resorted to antidemocratic strategies as a result of they doubt that they will beat him in a good election.
A. In judicial silence, President Trump’s political opponents have sensed alternative.
B. The choice beneath incentivizes inconsistent partisan willpower of Part 3 poll entry choices.
C. Adopting the Colorado Supreme Courtroom’s principle would require this Courtroom to adjudicate political questions
II. The President is just not an “officer of the United States” inside the that means of the Fourteenth Modification
A. Neither the drafters of the Fourteenth Modification nor this Courtroom have addressed whether or not the Disqualification Provision of Part 3 applies to former Presidents.
B. The Structure’s plain textual content demonstrates that the President is just not an “officer.”
C. Conventional canons of building help the plain studying of Part 3’s textual content.
D. Structural concerns additional help the President’s distinctive constitutional standing
Filed on 1/15/24
Amicus temporary of David E. Weisberg
The presidency and vice presidency have been intentionally omitted from the record of barred workplaces as a result of in 1868 there was no hazard that voters with unreconstructed insurgent sentiments might choose winners in a nation-wide election, whereas there clearly was such a hazard in elections confined to States that had beforehand seceded
A. Within the nationwide citizens, voters with Unionist sentiments far outnumbered these with Accomplice sentiments, and it might subsequently be not possible for the latter to select winners in an election for president and vp
B. As an extra safeguard, Part 3 explicitly barred any disqualified particular person from serving as “elector of President or Vice-President”
Filed on 1/16/24
Amicus temporary of Professor Kurt T. Lash
I. Part Three’s textual content is ambiguous about inclusion of the President.
A. Round 1868, “civil officer under the United States” was not understood to incorporate apex political positions.
B. Guidelines of building counsel Part Three excludes the apex workplace of the President.
II. The ratifying debates didn’t resolve the inherent ambiguity of Part Three.
III. Studying Part Three as excluding the workplace of the President is textually and traditionally affordable.
A. Although prior drafts of Part 3 enumerated the workplace of the President, the ultimate draft omitted this language.
B. The Joint Committee on Reconstruction ignored the workplace of the President and as an alternative centered on Congress and the electoral faculty.
C. The ultimate draft of Part Three additionally centered on Congress and the electoral faculty, however expanded the textual content to incorporate decrease federal and state workplaces.
D. Part Three secured a sufficiently reliable electoral faculty.
Amicus temporary of Public Curiosity Authorized Basis and Hans von Spakovsky
I. The Continued Authorized Viability of Part 3 Is Suspect
II. Part 3 Does Not Apply to Former President Donald Trump.
III. No State Courtroom Has the Constitutional Authority to Overrule the Judgment of the Senate that Acquitted President Trump of “Incitement of Insurrection.”
IV. Part 3 Is Not Self-Executing and No Courtroom Has the Authority to Implement Part 3 As a result of Congress Has Not Handed a Federal Legislation Offering for Enforcement.
V. States Can not Add Qualification Past What the Structure Units Forth.
Filed on 1/17/24
Amicus temporary of 102 Colorado Registered Electors
I. THE COLORADO ELECTION CODE DOES NOT VEST COLORADO COURTS WITH JURISDICTION TO ADJUDICATE QUESTIONS RELATING TO SECTION 3 OF THE FOURTEENTH AMENDMENT
II. THE PLAIN TEXT OF SECTION 3 OF THE FOURTEENTH AMENDMENT DOES NOT APPLY TO THE PRESIDENT
A. The President is just not an “Officer of the United States”
B. The Colorado Supreme Courtroom’s definition of an “Officer of the United States” contradicts the Framer’s and this Courtroom’s understanding of such phrase
III. CONGRESS REMOVED ANY ELECTORAL DISABILITY VIA THE 1872 AND 1898 AMNESTY ACTS
Amicus temporary of Devin Watkins and Charles Watkins
I. The President Is Not an “Officer of the United States” Nor Does He Maintain an “Office under the United States”
a. The “Officers of the United States” Are Appointed Positions within the Government and Judicial Branches, not the President.
b. An “Office Under the United States” Refers to Appointed Positions within the Government, Judicial, and Legislative Branches, Not the Workplace of the President.
II. Part Three of the Fourteenth Modification Constitutionalized the Second Confiscation Act, Which Used The Similar Which means of “Insurrection” Used Within the Militia Act
III. Colorado Can not Implement Part Three of the Fourteenth Modification In opposition to Federal Officers
Amicus temporary of The League for Sportsmen, Legislation Enforcement and Protection
I. The Structure’s Textual content Demonstrates That The President Is Not An “Officer Of The United States”
II. Part 3’s Legislative Historical past Demonstrates The President Is Not An “Officer Of The United States”
A. Part 3’s Legislative Historical past
B. The Colorado Supreme Courtroom’s Misguided Evaluation Of § 3’s Legislative Historical past
III. Case Legislation Does Not Help The President Being An “Officer Of The United States”
IV. Lawyer Common Opinions Do Not Help The President Being An “Officer Of The United States”
Amicus temporary of The Claremont Institute’s Middle for Constitutional Jurisprudence
I. A Former President is just not inside the jurisdictional scope of Part 3 of the Fourteenth Modification
II. Part 3 of the Fourteenth Modification is Not Judicially Enforceable With out Implementing Laws
III. Part 3’s Offense Ingredient Requires Congressional Laws
Filed on 1/18/24
Amicus temporary of The Honorable Peter Meijer
1. The Colorado Supreme Courtroom Wrongfully Determined A Non-Justiciable Political Query
a. Figuring out The Necessities For The Presidency Is Completely Inside The Purview Of The Legislature
i. The Plain Language Of Part Three Confirms That Congress Alone Has The Energy To Decide If A Individual Is Disqualified From Holding Workplace Below Part Three
ii. A Fundamental Understanding Of The Electoral Course of Reinforces Congress’s Position in Guarding the Presidency In opposition to Unqualified Candidates
b. The Contours of Disqualification underneath Part Three are Murky and Give no Manageable Requirements for Courts to Apply.
2. The Colorado Supreme Courtroom’s Resolution, If Allowed To Stand, Will Create Political Chaos
a. States Will Proceed to Inconsistently Apply Part Three to Former President Trump
b. If the Majority Opinion Stands, Part Three Will Be Ripe for Leveraging as a Software to Strike Political Opponents from the Poll
i. Consultant Tlaib
i. President Biden and Vice President Harris
iii. Governor Whitmer
iv. The Potential Utility of Part Three is Infinite
Amicus temporary of Judicial Watch, Inc. and Allied Academic Basis
I. Below Mathews v. Eldridge and Its Progeny, Colorado’s Civil Continuing Was Not an Applicable Listening to Given the Calls for of the Due Course of Clause
A. The Pursuits at Stake on this Case Embrace the Basic Constitutional Rights of Tens of millions of Occasion Members and Voters, and the Nationwide Curiosity in Governmental Legitimacy
B. The Danger is Excessive that Arbitrary and Misguided Outcomes from Varied State Proceedings Will Impair These Pursuits
C. The State of Colorado Has No Necessary Curiosity in Using Its Personal Statutory Procedures to Disqualify President Trump from The State Poll
II. If the Resolution of the Colorado Supreme Courtroom is Allowed to Stand, Federal Presidential Elections Will Routinely Contain Part 3 Challenges
Amicus temporary of James Madison Middle for Free Speech
I. Part Three’s prohibition in opposition to having “engaged in insurrection or rebellion” requires a direct, overt act of revolt, not incitement via speech.
A. To “engage” requires greater than mere phrases.
1. The textual content’s omission of incitement is weighty proof that “engage in insurrection or rebellion” doesn’t cowl incitement.
2. Plainly disjunctive language places a wall between the that means of “engaging” and the wholly separate inchoate acts of aiding or comforting.
B. “Insurrectionists” or “rebels” will not be, with out extra, “enemies.”
1. An “enemy” is an enemy nation.
2. Civil Battle prosecution amplifies the conclusion that “aid or comfort” to nonenemy insurrectionists is just not coated by Part Three.
3. Potential overlap of “enemies” and “insurrectionists” doesn’t imply per se overlap.
4. Informal building of “enemies” results in harmful outcomes.
C. The second opinion from Lawyer Common Stanbery suits nicely inside this building.
II. Even when Part Three’s use of “engaged” included incitement, Brandenburg applies and the Ellipse Speech is constitutionally protected.
A. Below the Brandenburg take a look at, solely the Ellipse Speech’s phrases could also be analyzed to find out whether or not they have been directed to incite or produce imminent lawless motion.
B. President Trump’s speech was not directed to inciting or producing imminent lawless motion.
Amicus temporary of Kansas Republican Occasion and 32 Different State and Territorial Republican Events
I. The Current Controversy is just not Ripe for Adjudication
A. Political Events’ Decisions of Their Candidates for Nationwide Places of work Implicate the Proper to Free Affiliation Below the First Modification
B. At This Stage, This Query is Not Ripe
II. The Colorado Supreme Courtroom Erred in its Interpretation of the Fourteenth Modification of the US Structure
A. The Colorado Supreme Courtroom might not Independently Decide {Qualifications} for the President of the US
B. Part Three of the Fourteenth Modification is Not Self Executing
C. Congress has Used its Implementing Energy Below Part 5 of the Fourteenth Modification, Foreclosing the Evaluation of the Colorado Supreme Courtroom
Amicus temporary of U.S. Senator Ted Cruz, Majority Chief Steve Scalise, and 177 Different Members of Congress
I. The Colorado Supreme Courtroom’s Resolution Encroaches on Congress’s Categorical Powers
A. Federal Implementing Laws Is Required to Implement Part 3
B. De-Balloting a Candidate Successfully Denies Congress Its Energy to Take away a Part 3 Incapacity
C. Part 3 Determinations Fall Throughout the Political Query Doctrine As a result of They Are Reserved for Congress
II. Part 3 Does Not Apply to Former President Trump
III. The Colorado Supreme Courtroom’s Resolution Lacks Impartial Ideas and Will Result in Widespread De-Balloting of Political Opponents
A. The Resolution Under Didn’t Meaningfully Confine “Engaging in Insurrection”
B. A Prolonged Listing of Partisan Grievances May Be Labeled As “Engaging in Insurrection”
Amicus temporary of Professor James T. Lindgren
Amicus temporary of Senator Steve Daines & Nationwide Republican Senatorial Committee
I. THE COLORADO SUPREME COURT ERRED BY MODIFYING THE QUALIFICATIONS FOR THE OFFICE OF PRESIDENT
A. The Structure Prohibits States From Altering The {Qualifications} For The Workplace Of President
B. Part 3 Imposes A Qualification On Holding Workplace, Not Operating For Workplace
C. The Colorado Supreme Courtroom Improperly Altered Part 3 And The {Qualifications} For The Workplace Of President
D. The Colorado Supreme Courtroom Misconstrued The Structure And This Courtroom’s Precedents
II. THE COLORADO SUPREME COURT VIOLATED THE FIRST AMENDMENT
Amicus temporary of Republican Nationwide Committee and Nationwide Republican Congressional Committee
I. Courts will not be the suitable discussion board for this dispute.
A. Part Three doesn’t apply till after an election.
B. Part Three didn’t give state officers energy to frustrate the federal authorities or nationwide will.
C. This Courtroom has cautioned in opposition to state management over comparable election points.
D. Congress has not approved pre-election enforcement of Part Three in state courts.
II. Main poll cleaning violates Nationwide Republican Amici’s First Modification rights.
III. Part Three doesn’t apply to former Presidents.
A. Presidents don’t take an oath “to support” the Structure.
B. The President is just not an “officer of the United States” as a result of that phrase by no means contains the President within the Structure.
IV. Part Three doesn’t cowl holding the presidency
Amicus temporary of Former United States Attorneys
I. The Colorado Courts Erred in Their Utility of Colorado Rule of Proof 803(8).
A. Customary of Overview
B. The Beech-Barry 4 Half Evaluation
C. Evaluation
1. Colorado’s Findings
2. As a matter of regulation, the Report doesn’t bear the requisite indicia of trustworthiness and reliability to render it an admissible “public record” per Rule 803(8)
a. Whereas the Colorado Courts Rightly Acknowledged the Committee’s Report Suffered from Potential “Motivation Problems,” They Minimized These Issues and Reached the Fallacious Conclusion
Amicus temporary of States of Indiana, West Virginia, 25 Different States, and the Arizona Legislature
I. Part 3 can’t be used to disqualify an individual from holding workplace until Congress first acts
II. With out extra path from Congress, courts can not say what constitutes “insurrection” underneath Part 3
III. Permitting state courts to use Part 3 to Presidents with out congressional motion would harm our system of presidency
Amicus temporary of U.S. Time period Limits
I. THIS CASE DOES NOT IMPLICATE THORNTON.
II. THORNTON IS EGREGIOUSLY WRONG AND SHOULD NOT BE REAFFIRMED OR EXTENDED.
Amicus temporary of The Secretaries of State of Missouri, Alabama, Arkansas, Idaho, Indiana, Kansas, Montana, Nebraska, Ohio, Tennessee, and West Virginia
I. Part Three Does Not Empower Secretaries of State to Disqualify Candidates for Federal Workplace
A. The Plain Textual content Does Not Empower Secretaries of State to Disqualify Presidential Candidates.
B. Historic Precedent Confirms That Part Three Does Not Give Secretaries of State An Inherent Disqualification Energy Below The Structure.
II. Even when the Courtroom Holds That Part Three Is Self-Executing, It Ought to Nonetheless Keep away from Any Development That Empowers Secretaries of State To Train An Inherent Disqualification Energy Due to the Apparent Sensible Issues That Would Move From Such A Resolution
Amicus temporary of America’s Future, et al.
I.THE ELECTION CALENDAR REQUIRES THIS COURT TO ADDRESS THE FOURTEENTH AMENDMENT AND INSURRECTION ISSUESRATHER THAN OPINE ON THE ROLE OF CONGRESS OR MATTERS OF COLORADO LAW
A.No Facet of Article II, Sec. 1, cl. 5 Eligibility Is Now earlier than the Courtroom
B.A Decision of the Colorado Legislation IssuesWill Not Meet the Pressing Want for aDecision on Article 3
C.Main and Common Elections
II.SECTION 3 OF THE FOURTEENTH AMENDMENT DOES NOT APPLY TO PRESIDENT TRUMP
A.The Plain Textual content
B.Griffin’s Case
Amicus temporary of Kansas
I. Part 3 Should Be Strictly Construed
A. Strict building is warranted as a result of Part 3 is penal
i. Part 3 is penal
ii. Penal provisions are strictly construed in favor of people
B. Strict building is important to keep away from interfering with Trump’s First Modification rights
II. Part 3 Is Not Relevant To Trump
A. Part 3 doesn’t cowl the President of the US
B. Trump didn’t interact in an revolt or rebel
Amicus temporary of Christian Household Coalition (CFC) Florida, Inc.
I. The Textual content of Part 3 of the Fourteenth Modification and Precedent Below It Point out a Demonstrable Constitutional Dedication to Congress Alone to Set the Procedures and Requirements for Poll Disqualification
II. The Inherent Pursuits in Nationwide Uniformity, When Dealing With the Utility of Federal Legislation to the President, Require a Uniform Nationwide Customary and Uniform Nationwide Procedures to Tackle {Qualifications} Below Federal Legislation for Presidential Poll Entry and Workplace Holding
III. Various State Definitions of What Constitutes an “Insurrection” or “Rebellion” In opposition to the US Are Tantamount to Various State Definitions and Management Over the Federal Authorities Which is Constitutionally Impermissible
IV. The Disastrous Potential For a Single State Choose to Set off Non-Mutual Offensive Collateral Estoppel In opposition to a Nation-Vast Presidential Candidacy is Inherently Opposite to Our Democratic Values and Counsels Reversal of the Resolution of the Colorado Supreme Courtroom
Amicus temporary of Gavin M. Wax, New York Younger Republican Membership Inc., and Nationwide Constitutional Legislation Union Inc.
I. President Trump Has Not “Engaged” in Any Overt Acts Amounting to Rebellion
A. The Courtroom Under Ignored The Plain Which means of The Phrase “Engaged” as Initially Understood
B. The Plain Which means of The Phrase “Engaged” as Initially Understood Excluded Mere Rhetoric
C. Case Legislation Utilization of The Phrase “Engaged” and Its Variations From the Applicable Historic Interval Meant that Overt Acts Past Mere Phrases Have been Required
D. The Second Confiscation Act Specified “Engage” and “Incite” as Separate Acts E. The Phrase “Engage” within the Battle Clause Requires a State’s Direct Prosecution of Battle
II. Disqualification Below the Rebellion Clause With out An Overt Act Can Solely Happen in Cases In Which an Particular person Gave “Aid and Comfort” To The “Enemies” of the US
Amicus temporary of Former Attorneys Common Edwin Meese III, Michael B. Mukasey and William P. Barr; Legislation Professors Steven Calabresi and Gary Lawson; Residents United and Residents United Basis
I. Part 3 Does Not Disqualify Presidential Candidates from the Poll.
A. Part 3’s textual content and construction present that candidates for President are excluded from its attain.
B. Prior drafts of Part 3 affirm that excluding the President was deliberate.
C. Criticism from the opposite facet of the controversy can not face up to scrutiny.
II. Part 3 Requires Enabling Laws Below Part 5, Similar to 18 U.S.C. § 2383.
19 A. Article II’s presidential {qualifications} do nothing to counsel that Part 3 is self-executing.
B. The Fourteenth Modification incorporates each provisions which might be self-executing and people who require Congress to legislate.
C. Part 3’s historical past reveals that it requires enabling laws.
D. Congress enacted related laws in 18 U.S.C. § 2383, however President Trump is just not accused of violating that statute.
III. It Would Be Extremely Imprudent to Interpret Part 3 in Any Manner that Empowers Partisan Officers to Unilaterally Disqualify Political Opponents from Public Workplace.
Amicus temporary of Chuck Grey, Secretary of State of Wyoming
I. The President Is Not an “Officer of the United States”
II. Former President Trump Did Not Commit Both Act Described In Part 3
A. This Courtroom ought to give impact to part 3’s two distinct disqualification predicates
B. President Trump didn’t commit both of Part 3’s disqualification offenses 1. President Trump didn’t interact in revolt or rebel in opposition to the US
2. Former President Trump didn’t give assist or consolation to the enemies of the US