🎙️ Voice is AI-generated. Inconsistencies may occur.
The Supreme Court justices may offer a preview as to how they might rule in Donald Trump's Colorado ballot challenge case, in a separate case involving Texas flooding.
Last month, Colorado's Supreme Court decided that Trump's actions related to the January 6, 2021, riot at the U.S. Capitol—when a group of his supporters violently protested the 2020 election results and tried to block the certification of President Joe Biden's Electoral College victory—constituted a violation of Section 3 of the 14th Amendment. The Colorado court ruled that he should therefore not appear on the state's GOP primary ballot.
The 14th Amendment states that those who have taken an oath to defend the Constitution and then engage in "insurrection or rebellion" are not permitted to hold "any office, civil or military, under the United States."
The U.S. Supreme Court accepted Trump's appeal of the Colorado decision last week, meaning the justices will have the last say on whether Trump can run in the state's primary in March. He will remain on the ballot pending the Court's ruling.
Meanwhile, the Court is set to begin hearing arguments next week in a seemingly unrelated case that could have crucial implications for Trump in the GOP primary race.
The case, Devillier v. Texas, was brought by Richie Devillier, a Texas farmer who says the state Department of Transportation built a highway system that led to flooding and caused significant damage to his family's land in Chambers County, just outside of Houston, during Hurricane Harvey in 2017. He is arguing that the state should compensate him for that damage, citing the Fifth Amendment.
Michael McAuliffe, a former federal prosecutor and former elected state attorney, told Newsweek how the cases will address similar legal questions.
"While the factual and the legal issues in the two cases differ, they share a common core theme––whether specific provisions of the U.S. Constitution are self-executing," he said.
A self-executing clause goes into effect without needing Congress to pass any legislation, while a non-self-executing clause requires some form of legislation, either enacted by Congress or a state, before taking effect, McAuliffe said.
While Trump's case deals with the 14th Amendment, Devillier's plaintiffs are making the case that the "takings clause" of the Fifth Amendment, which states that private property shall not "be taken for public use, without just compensation," is self-executing.
Texas, however, has said a state or federal law must first authorize a lawsuit to be filed on Devillier's behalf.
McAuliffe noted a difference between the two cases. The Fifth Amendment does not contain language requiring Congress to pass enabling legislation, while the 14th Amendment states, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
"While this difference isn't conclusive, it provides a clear basis to differentiate the two cases. As such, Devillier may provide a hint of what's to come in the Trump ballot case but not a prediction," McAuliffe said.
Former federal prosecutor Barbara McQuade told Newsweek that while Trump and Devillier have raised similar legal questions, the Court may reach different outcomes in the two cases.
"It may be interesting to see how the Court rules in the Devillier case and handles the concept of self-executing language, but I think that the majority of the justices will be focused on the text of each amendment. And so we might see different outcomes between the two cases because of the differences in the text," she said.
Former federal prosecutor Neama Rahmani agreed, also saying the justices may reach different outcomes.
"Is it Congress through the impeachment process? Does it require a criminal prosecution and conviction? A decision by secretaries of state or election officials? There has to be some sort of process, so the Supreme Court could reach different conclusions in both cases," he told Newsweek.
Newsweek reached out to Trump's campaign for comment via email.
The Court's ruling on Trump's case could have significant ramifications for the 2024 presidential election. The former president remains the clear front-runner to win the GOP nomination less than a week before the first votes are cast in Iowa's nominating contest. Not appearing on the Colorado ballot—and potentially on other states' primary ballot—could make securing the nomination more difficult for him.
Like Colorado, Maine has also moved to remove Trump from its primary ballot—after a ruling by its secretary of state—and not the ballot in November's general election. Polls show Trump leading President Joe Biden in a hypothetical matchup in that race.
Update 1/11/24, 2:35 p.m. ET: This story was updated with comments from former federal prosecutors Barbara McQuade and Neama Rahmani.
fairness meter
About the writer
Andrew Stanton is a Newsweek weekend reporter based in Maine. His role is reporting on U.S. politics and social issues. ... Read more