at lower levels of the government. the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk the former confederates might return to power in the south via state-level elections either in local offices or as representatives of the states in congress. and that's a very different lens. if your concern is trying to make sure these people don't come back through the state apparatus and control the government in that direction, seems to me very different than the worry that an insurrectionist with seize control of the entire national government through the presidency. and so i just am surprised that you would, given the text of the provision and the historical context that seems to demonstrate their concern or focus was not about the presidency, i just don't understand why you are giving up

that argument. >> there is some evidence to suggest that. >> any evidence to suggest the presidency was what they were focused on? >> there is some evidence of that. people saying we don't want jefferson davis to be elected president and one of the drafts of section three specifically mentioned the presidency and vice presidency. >> it wasn't the final inaction. >> it wasn't final but there was concern by some people about con federal insurrectionists ascendsing to the presidency. we didn't want to make a a history argument. the other side can come back and throw this counter evidence back in our face. we wanted to focus more on the text of the constitution. it was a compromise provision that was enacted in section three. >> let me ask you another question about the states because you have forcefully made an argument about the states not being able to enforce section three. so if we agree with you on that,

what happens next? i thought you also wanted us to end the litigation so is there a possibility this case continues in federal court if that's our conclusion? >> i don't see how it could unless congress would enact a statute. >> your point is that we would have to say congressional enacting legislation is necessary for either state or federal enforcement. >> that's correct. >> all right. final question. the colorado supreme court concluded that the violent attempts of the petitioner's supporters in this case to halt the count on january 6th qualified as an insurrection as defined by section three and i read your opening brief to accept that those events counted as an insurrection but then you seemed to suggest they are not. what is your position. >> we never accepted or conceded in the opening brief it was an

insurrection. we said president trump did not engage in any act that can be characterized as insurrection. >> what is your argument it is not? i think you say it did not involve an org knifersed attempt to overthrow the government. >> for an insurrection there needs to be a concerted effort to overthrow the united states government through violence. we didn't concede it is an effort to overthrow the government, either. none of these criteria were met. it was a riot. the events were criminal and violent but did not qualify as insurrection as the term is used in section three. >> thank you, counsel. >> thank you. >> mr. murray.

>> mr. chief justice and may it please the court. we are here because for the first time since the war of 1812, our nation's capitol came under violent assault. for the first time in history, the attack was incited by a sitting president of the united states to disrupt the peaceful transfer of presidential power by engaging in insurrection against the constitution, president trump disqualified himself from public office. as we heard earlier, president trump's main argument is that this court should create a special exemption to section three that would apply to him and him alone. he says section three disqualifies all oath breaking insurrectionists except a former president who never before held other state or federal office. there is no possible rationale for such an exemption and the

court should reject the claim the framers made a mistake. it uses broad language to cover all positions of federal power requiring an oath to the constitution. my friend relies on a claimed difference between an office under and an officer of the united states but this case does not come down to mere prepositions. the two phrases are two sides of the same coin referring to any federal office or to anyone who holds one. president trump's other arguments for reversal ignore the constitutional role of the states in running presidential elections. under article two in the 10th amendment states have the power to insure that their citizens votes are not wasted on a candidate who is constitutionally barred from holding office. states are allowed to safeguard their ballots by excluding those who are underage, foreign born, running for a third presidential term, or as here those who have

engaged in insurrection against the constitution in violation of their oath. i welcome the court's questions. >> do you have contemporaneous examples, by that i mean shortly after the adoption of the 14th amendment where the states disqualified national candidates, not its own candidates, but national candidates? >> the only example i can think of is the example of congressman christie, elected in georgia in i believe 1868 and the governor of georgia refused or declined to certify the results of that election because mr. christie was disqualified. i think it is not surprising there are few examples. we didn't have ballots in the same way back then. candidates were either write-in or party ballots. the states didn't run the ballots in the same way and there wouldn't have been a plow

cess for determining before an election whether a candidate was qualified, unlike the processes we have now that states have created under article one and article two powers to run elections. >> it would seem that particularly after reconstruction and after the compromise of 1877 and during the period of redeemers, that you would have that kind of conflict. there were a plethora of confederates still around. any number of people who would continue to run for state offices or national offices. so that would suggest that there would at least be a few examples of a national candidates being disqualified. if your reading is correct. >> there are certainly national candidates disqualified by congress refusing to seat them. >> i understand that. that's not this case. did states disqualify them, that's what we're talking about here.

i understand congress would not seat them. >> other than the example i gave, no. again it's not surprising. there wouldn't have been -- states wouldn't have the authority to remove a sitting -- >> what's the purpose of the section three? states were sending people that the concern was the former con federal states would continue being bad actors. and the effort was to prevent them from doing this. you are saying it also authorized states to disqualify candidates. what i'm asking you for, if you are right, what are the examples? >> your honor, it's states excluded many candidates for state office, individuals holding state offices. we have a number of published cases of states. >> i understand that. i understand the states controlling state elections and state positions. what we are talking about here are national candidates.

i understand you look at foote or mcphearson, they all talk about, of course, the conflict after the civil war and there were people who felt very strongly about retaliating against the south. the radical republicans. but they did not think about authorizing the south to disqualify national candidates and that's the argument you are making. and what i would like to know is do you have any examples of this? >> many of those historians have filed briefs in our support in this case making the point that the idea of the 14th amendment was both states and federal government would insure rights and if states failed to do so, the federal government certainly would also step in. but i think the reason why there aren't examples of states doing this the fact that elections worked differently back then. states have a

[ground power in the 10th amendment to run presidential elections. they didn't use that power to police ballot access until the 1890s. by the 1890s, everyone had received amnesty and issues were mute. >> i would like to look at justice thomas's question. the whole point of the 14th amendment was to restrict state power, right? states shall not abridge, privilege immunity, they won't deprive people of property without did you process. they won't deny equal protection. on the other hand it august monilateed federal power. congress has the power to enforce it. wouldn't it be the last place you would look for authorization for the states, including confederate states, to enforce implicitly, to enforce the presidential election process? that seems to be a position that is at war with the whole thrust

of the 14th amendment and very ahistorical. >> no, your honor, we would locate the state's authority to run presidential elections not in the 14th amendment but article two. that power is nearly plenary. >> you have no reliance on section three. >> we have rely answer on section three. broad power implies the narrower power enforce congressional. >> the narrower power you are looking for is the power of disqualification. a very specific power in the 14th amendment. you are saying it was extended to the states under a clause that doesn't address that at all. >> we would say that nothing in the 14th amendment takes away from the states their broad and nearly plenary power to determine the manner of selecting their electors in the manner they see fit.

as this court said that power is nearly plenary unless something in the constitution tells states they can't do it. and the structure of the 14th amendment certainly was intended to expand federal power and certainly to restrict state power in some ways. but states are bound to enforce and apply, for example, section one of the 14th amendment. hard to see why states wouldn't be similarly bound or authorized. >> that is the greater includes the lesser argument. the state has the power. the legislature has the power to choose electors, granted. just because there is one authorized means in the constitution to a particular end does not mean that there is any means to that end. so i think you are taking that electors argument and bringing it into section three where as the chief justice says there is -- and justice thomas there is no historical evidence to support the theory of section three nor the overall to explain

the overall structure of the 14th amendment. >> we certainly have a long history in this country of states using their power to determine the manner of enforce other qualifications in the constitution. i don't think there is great debate whether or not states are allowed to exclude underage or foreign born candidates or president bush or obama wanted to run for a third term that they could be excluded. i don't see why section three should be treated any differently. it speaks in the seem. >> the term insurrection jumps out in section three. the questions are what does that mean? how do you define it? who decides whether someone engaged in it? what processes, as justice barrett alluded to, what processes are appropriate for figuring out whether someone did engage in that? and that's all what chief justice chase focused on a year

after the 14th amendment to say these are difficult questions and you look right at section five of the 14th amendment as the chief justice said and tells you congress has the primary role here. i think what's different is the processes, the definition who decides questions really jump out at you when you look at section three. your response to that. >> certainly there has to be some process for determining those questions. the question becomes does anything in the 14th amendment say that only congress can create that process? and section five very clearly is not an exclusive provision. it says congress shall have power. >> put most boldly i think the question you have to confront is why a single state should decide who gets to the president of the united states? in other words, the question of whether a former president is disqualified for insurrection to be president again is just say it, it sounds awfully national

to me. so whatever means there are to enforce it would suggest that they have to be federal, national means. why does -- if you weren't from colorado and you were from wisconsin, or you were from michigan, and it really -- what the michigan secretary of state did is going to make the difference between whether candidate a is electsed or candidate b is elected. that seems quite extraordinary, doesn't it >> no, it is this court that will decide that question of federal constitutional eligibility and settle the issue for the nation. it is not unusual that questions of national importance come up. >> i suppose when this court would be saying something along the lines of the state has the power to do it but i guess i was asking you to go a little bit further and saying why should that be the right rule? why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?

>> article two gives them the power to appoint their own electors as they see fit. if they are going to use a federal constitutional qualification as a ballot access determinant, it is creating a federal constitutional question that this court decides and other courts, other states -- if this court affirms the decision below determining president trump is ineligible to be president other states would have to determine what effect it would have on their own state law and procedure. >> well, if we affirmed and said he was ineligible to be president, yes, maybe some states would say well we'll keep him on the ballot anyway but as justice kagan said it will have the effect of colorado deciding. i want to push back a little bit it's a national thing because this court will decide it. you say that we have to review colorado's factual record with clearer orr as the standard of review. so we would be stuck, the first mover state here, colorado,

we're stuck with that record and, you know, i don't want to get into whether the record -- maybe the record is great but what if the record wasn't. what if it wasn't a full some or just made by the secretary of state without a process as all. how do we review those factual findings? why should clear error apply? we made with mr. mitchell, too. it doesn't seem like a state call. >> three points. the first is ordinarily this court reviews factual findings for clear error. president trump made the point in his reply brief sometimes on constitutional questions this court can do something more like an independent review of the factual record and we would have no objection to that given the record here really the facts that are disputed here are incredibly narrow.

the essence of our case is president trump's own statement he public for all to see. >> then that's saying in the context, high stakes, if we review the facts you want us to watch the video of the ellipse and make a decision without any deference to or guidance from lower court fact finding? that's unusual. >> ultimately president himself urges this court to determine on page two of his brief. he has never at any point in this proceeding suggested there was something else that needed to be in the factual record any other witnesses he wanted to call to present his case and again the essence of our case is his own statements. and in particular his own videotaped statements on the ellipse. >> just to circle back to -- before we left it i want to circle back toward justice kagan was. do you agree that the state's powers here over its ballot for

federal officer election have to come from some constitutional authority? >> members of this court have disagreed about that. >> i'm asking you. >> the majority of this court has said those powers come from article two. but we think the result is the same whether the court locate it in article two or reserve power under the 10th amendment. >> you accept this court has held -- you are not contesting or asking us to revisit that decision in thornton or term limits or whatever you want to call it. it has to come from a federal constitutional authority. >> we are not. >> here we aren't talking about the qualifications clause, right? nobody is talking about whether he is 35 years old or natural born, or whatever. not an issue. we are talking about something under the 14th amendment section three. that's where you have to find your authority, right? >> we find our authority in article two in states plenary power to run their election.

>> this is for a federal office. it has to come from the constitution and you are seeking to enforce section three. >> we're suggesting in their broad power to determine -- to select presidential elect tours in any manner they see fit. they can take account of section three. >> could they do it without section three. could they disqualify somebody for on whatever basis they wanted outside of the qualifications clause? >> that would run into term limits. >> i would think so, right? it has to come back to section three. if that's true, how does that work given that section three speaks about holding office, not who may run for office? that was the point mr. mitchell was making earlier. it seems to me that you are asking to enforce in an election some context, provision of the constitution that speaks to holding office. it's different than the qualifications clause which is

about who can run and then serve. >> i don't know it is different. other qualifications for office talk about eligibility for the office. nothing unconstitutional about a 30-year-old trying to get on the ballot. >> except for this disability can be removed under section three. that's what is different about it. thoughts on that. >> the fact there is an extraordinary provision for removing the disability doesn't remove the fact the disability exist today and since january 2021 when president trump -- >> bill: were his actions after that date before he left office -- is that where your theory leads? >> can one collaterally attack an officer? we would agree in griff an's case when the justice said i talked to my supreme court colleagues and we agree you can't collaterally attack all

official actions of an officer who is holding the position. >> circle back to where we started, right? this is section three, your authority has to come from there. it is about holding office and it is a particular kind of disability that can be removed by congress. it is the only one like that, right? they can't remove age or citizenship. how should that inform our thoughts about a state's efforts to regulate the ballot for a federal office? >> the colloquy we had with justice alito had earlier. congress has an extraordinary removal power. it exists indefinitely into the future much like the fact that the president can pardon somebody for criminal conviction doesn't make it contingent. if president trump were appointed to office today he could not hold the office.

it shows the disability exists now and the fact that congress has a power to remove the disability doesn't negate the present qualification nor bestow on president trump a constitutional right to run for offices that he cannot hold in violation of state law and state procedure under article two. >> in fact, there was a congressional action to permit con federal officers or people who support evidence that to hold office before the 14th amendment, correct? there must have been a thought there was a pre-existing disqualification. >> that's right. there were a flood of amnesty requests before section three went into effect. everybody understood at the time those people would be disqualified the moment that section three was enacted forever unless they received amnesty. >> what do you do with what seems to me to be plain consequences of your position.

if colorado's position is upheld, surely there will be disqualification proceedings on the other side and some of those will succeed. some will have different standards of proof. some will have different rules about evidence, maybe the senate report won't be accepted in others because it is hearsay. maybe it's beyond a reasonable result. in quick order i would expect, although my predictions have never been correct, i would expect that a goodly number of states will say whoever the democratic candidate is you're off the ballot and others for the republican candidate you are off the ballot. it will come down to a handful of states to decide the presidential election. that's a pretty daunting consequence. >> certainly the fact that there are potential frivolous applications of a constitutional provisions isn't a reason. >> hold on. you might think they're

frivolous. the people bringing them may not think that. insurrection is a broad term and if there is some debate about it, i suppose that will go into the decision and eventually what we would be deciding whether there was an insurrection when one president did something as opposed to when somebody else did something else. do we wait until near the time of counting the ballots and go through which states are valid and which states aren't? >> there is a reason section three has been dormant for 150 years because we haven't seen anything like january 6th since reconstruction. insurrection against the constitution is something extraordinary. >> it seems to me you are avoiding the question. other states may have different views and now you say it's all right because we'll decide well, they said they thought that was an insurrection and they were wrong and maybe they thought it was right and we have to develop rules for what constitutes an

insurrection. >> this court can make clear insurrection against the constitution is something extraordinary and requires a concerted group effort to resist through violence not some ordinary application of state or federal law but the functions mandated by the -- >> on your point it has been dormant for 155 years, i think the other side would say the reason for that is chief justice chase's opinion in 1869 in griffin's case to start which says that congress has the authority here, not the states. that's followed up by the enforcement act of 1870 where congress acts upon that understanding, which is followed and there is no history contrary in that period as justice thomas pointsed out. no history contrary in all the years leading up to this of states exercising such authority. i have think the reason it's been dormant is because there has been a settled understanding

that chief justice chase was right in the branches of the government have acted under that settled understanding for 155 years and congress can change that. congress does have section 2383, the insurrection act criminal statute. congress can change it but they haven't in 155 years in relevant respects for what you want here today. >> the reason why it's been dormant is because by 1876 essentially all former confederates received amnesty. i would like to address your point. >> i don't know how much we can infer from the fact that we haven't seen anything like this before and therefore conclude we're not going to see something in the future. from the time of the impeachment of president johnson until the impeachment of president clinton, more than 100 years later, there were no

impeachments of presidents and in fairly short order over the last couple of decades we've had three. so i don't know how much you can infer from that. >> certainly. if this court affirms it can write an opinion that emphasizes how extraordinary insurrection against the constitution is and how rare. it requires an assault not just on the application of law but on constitution nall lehman dated functions themselves like we saw january 6th. coordinated attempt to disrupt a function mandated by the 12th amendment and essential to constitutional transfer of power. >> let me ask you a question the power of plenary is really is plenary. suppose the outcome of an election for president comes down to the vote of a single state, how the electors of the vote of a single state are going to vote. and suppose that candidate a gets majority of the votes in

that state but the legislature really doesn't like candidate a, thinks candidate a is an insurrectionist so the legislature passes a law ordering its electors to vote for the other candidate. you think the state has that power? >> i think there may be principles that come into play in terms of after the people have voted that the state can't change the rules midstream. i'm not sure. i'm not aware of this court addressing. >> let's change it so it's not after the election. it's three days before the election based on the fact the polls in the state look bad. can they do it? >> i think they probably could under this court's decision where this court emphasized for much of american history state legislatures picked their own electors themselves. it would be much more extraordinary than what we have here, simple application of normal state ballot access principles to say that we're only going to put on the ballot

an individual qualified to assume the office. >> can i ask you the question the justice gorsuch asked to which you responded by citing the defact owe officer doctrine. let's look at that going forward rather than judging the validity of an act committed between the time when a president allegedly engages in an insurrection and a time when the president leaves office. during that interim period would it be lawful for military commanders and other officers to disobey orders of the president in question? >> i'm not sure that anything gives military officers the authority to adjudicate effectively the legality of the presidency. >> you say he is disqualified from the moment it happens. i understand the detact owe officer doctrine might be used from keeping people from seeking judicial remedies for decisions that take place after the date

he was disqualified. but if he is in fact disqualified, from that moment why would anybody have to obey a direction from him? >> ultimately there still has to be some kind of procedure in place to adjudicate the disqualification. congress could impeach a sitting president. that's the only remedy that i am aware of for removal or negating the authority of a sitting president. >> on what theory? section three speaks about disqualification from holding office. you say he is disqualified from holding office from the moment it happens. >> correct. >> so it operates -- you say there is no legislation necessary. i thought that was the whole theory of your case. no procedure necessary. it happens automatically. >> certainly you need a procedure in order to have a remedy to enforce the disqualification. >> that's the whole separate question. it doesn't work here. put that aside. he is disqualified from the

moment, self-executing, done. i would think that a person who would receive a direction from that president, former president in your view, would be free to act as he or she wishes without regard to that individual. >> i don't think so. i think again the defacto officer doctrine. >> it doesn't work. it's to ratify the conduct that's done afterwards and insulated from judicial review. put that aside. i won't say it again. put it aside. i think justice alito is asking a different question. a more pointed and difficult one for you. it deserves an answer. on your theory, would anything compel a lower official to obey an order from in your view the former president? >> i'm imagining a situation where, for example, a former president was -- a president was

elected and they were 25 and ineligible to have office but >> we're talking about section three. don't change the hypothetical. i like doing it, too. please don't do it. okay? >> the point i'm trying to make. >> he is disqualified from the moment he created an in insur insurrection. boom, it happened. try to answer the question. if you don't have an answer, we'll move on. what would compel a lower official to obey an order from that individual? >> because ultimately we have statutes and rules requiring chains of command. the person is in the office and even if they don't have the authority to hold the office, the only way to get someone out of the office of the presidency is impeachment. i think if you interpreted section three in light of other provisions in the constitution like impeachment while they hold office, impeachment is the only way to validate that they don't have the ability to hold that

office and should be removed. >> mr. murray, can i -- can i just ask you about something justice kagan brought up earlier, which is the concern about uniformty and the lack there of if states are permitted to enforce section three in presidential elections. i didn't really understand your argument or your response to her about that. >> certainly if congress is concerned about uniformity they can provide legislation and preempt state. >> you say it's not necessary. >> it is not necessary in the absence of federal enforcement legislation. these questions come up to this court the same way others do. a state ajudd indicates them. if they haven't provided sufficient process with due process, notice and opportunity to be heard one can make those challenges. assuming here we have a full evidentiary record and opportunity to present evidence. >> i understand that we could

resolve it so that we have a uniform ultimate ruling on it. i guess my question is, why the framers would have designed a system that would -- could result in interim disuniformty in this way. elections pending and states suddenly saying you are eligible and you're not on the basis of this kind of thing. >> they were ensureed that insurrectionists and rebels don't hold office. once you understand the imperative they had to insure oath breakers wouldn't take office it would be a little odd to say that states can't enforce it, only the federal government can enforce it and that congress can essentially rip the heart out of section three by a simple majority by failing to pass enforcement legislation. it creates redundancy. the fact that states have the ability to enforce it as well absent federal is safeguards

against. >> i will ask you about the history when i get a chance again >> thank you. justice thomas. justice alito. >> suppose there is a country that proclaims again and again and again that the united states is its biggest enemy and suppose that the president of the united states, for diplomatic reasons, think that it's in the best interests of the united states to provide funds or release funds so that they can be used by that country. could a state determine that that person has given aid and comfort to the enemy and therefore keep that person off the ballot? >> no, your honor. it is present in the treason clause. they are so rare.

commentators that aid and comfort is in a declared war or adversarial relationship where there is a war between two countries. second, the intense standard would not work there. under section three whatever the underlying conduct is engaging in insurrection or aid and comfort has to be done with the intent to further the unlawful purpose of the insurrection or aiden meece in pursuit of war against the united states. >> the question of what we would do if we were -- if different states had adjudicated the question of whether former president trump is an insurrectionist using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof. then what would we do? >> ultimately this court -- if there were deficiencies in the report the court could refuse to hear the case or decide on the basis of defetch insee of the

record. >> would we have to decide what's the appropriate rule of evidence applied in this case? would we have to decide what is the appropriate standard of proof? would we give any deference to these findings by state court judges, some of whom may be elected? would we have to have our own trial? >> no, this court takes the evidentiary record as it is given and here we have and evidentiary record that all the parties agree is sufficient for a decision in this case and as i discussed earlier there is a possibility of an independent review of the facts. what we have here is an insurrection incited in plain sight for all to see. >> you aren't answering my question. suppose we have two different records, two different bodies of evidence, two different rulings on questions of admissibility. two different standards of proof, two different sets of fact findings by two different

judges or maybe multiple judges in multiple states. then what do we do? >> first the court would set the legal standard and then decide which view of the record was correct i think under that. >> which would be what record? of which record? >> if this court had two cases and both records were sufficient and both sides had the opportunity to present their case and the essential facts in the record that everyone agreed was sufficient for decision then this court would have to look at the evidence presented and decide which holding was correct and decide that issue for the country. certainly here when there is a complete record, lower courts then will be applying that decision and i think it's unlikely any court would say we'll reach a different decision than the u.s. supreme court did particularly if the court relies on the facts. the indisputable facts what president trump said on video and on twitter. >> let's take an expert testify

that the meaning of what president trump said. do you think it's possible that a different state court would apply it differently and say that this person should not be allowed to express an expert opinion on that question? do you think that's beyond the realm of imagination. >> the second point is that professor seemy really didn't opine on the meaning of president trump's words but on the effect those words had on violent extremist tea, it was videotaped statements of president trump himself encouraging praising political violence. >> i am not taking a position one way or another whether the expert's testimony should have been admitted or anything like that or the meaning of president trump's words . i'm trying to get you to grapple with what

some people have seen as the consequences of the argument that you are advancing, which is that there will be conflicts in decisions among the states. the different states will disqualify different candidates. i'm not getting a lot of help from you about how this would not be an unmanageable situation. >> if this court writes an opinion of affirming on the facts of what president trump said on january 6th and in the weeks leading up to it and his confession on twitter after the fact it would be reversible error for any other state to conclude otherwise on that question of federal law or at the very least this court could address that whether the issues come up. it seems unlikely. >> justice sotomayor. >> there are two sides to the other side's position. the first is that it's not self-executing. i want to put that aside. deal with if we were to hold

that states don't have the right to enforce or create a cause of action in this situation. they want the flip to say no, but even congress can't do it because they need implementing legislation. address that argument. assume we rule states don't have it. what would you have us say for the other side of the argument? one of my colleagues says -- circuit court justice chase said, which is that somehow you need implementing legislation like the 1870 act. you seem to say that's not true because they could -- they could decide not to seek -- seat a

candidate, etc. i don't know that legislature is necessary. >> certainly there are historical examples of members of congress under their article one power to judge the qualifications of its members. of members of congress refusing to seat ineligible candidates under section three who won election. with presidency it would create difficult issues there is no way to determine president trump's eligibility until after the election. what happens when members of congress when they count the votes say we won't count the votes cast for president trump because he is disqualified under the electoral count reform act. a number of the briefs have made the point that is kind of a disenfranchisement and constitutional crisis in the making and more reason to address the issues now in a judicial process on a full evidentiary record so everybody can have certainly on the issues

before they go to the polls. >> you talked and you relied on the state's expensive powers under the electors clause and talked about the states having a role in enacting typical ballot access provisions. i guess strikes me that we've put some limits on that. i will give you anderson case on that. states are limited in who they can take off a ballot. that was a case about minor party candidates. but the reason was one state's decision to take a candidate off the ballot effects everybody else's rights. and we talked about the pervasive national interest and the selection of candidates for national office and talked about how an individual state's decision would have an impact beyond its own borders. so if that goes for minor political party candidates, why

doesn't it go for the situation in this case? >> certainly constitutional principles like section three apply to everybody. the issue there was a first amendment question. certainly there is no doubt that states exercise of their powers under article two is constrained by first amendment principles. in that case the state law deadlines for when a minor party candidate got on the ballot came too soon to be reactive to what major parties had done and risked disenfranchising people. it raised first amendment problems. here there is no first amendment problem. a state is trying to enforce an existing qualification backed into the constitutional fabric. >> it did come up in the first amendment but there is a broader principle there. a broader principle about who has power over certain things in our federal system. and within our federal system states have great power over many different areas.

but that there is some broader principle about there are certain national questions that where states are not the repository of authority. i took a lot first amendment not first amendment a lot of anderson's reasoning is really about that. what is a state doing deciding who gets to -- who other citizens get to vote for for president? >> colorado is not deciding who other states get to vote for for president. deciding to assign its len electors under its power >> the effect of that is obvious, yes? >> no, your honor. different states can have different procedures. some states may allow that. we aren't looking past the papers or look into federal constitutional questions. the sort of even in this election cycle there are candidates who are ole the ballot in some states even though they aren't natural born

citizens and off the ballots in in other states. it's the state's power to preserve their own electors and avoid disenfranchisement of their own citizens. >> haven't had a chance to talk about the officer point. i want to give you an opportunity to do that. mr. mitchell makes the argument that particularly in the commissions clause, for example, all officers are to be commissioned by the president seems to be all encompassing that language. and i'm curious for your response to that. along the way, if you would, i poked a little bit at the difference between office and officer in the earlier discussion you may recall. i think one point your friends on the other side would make is well, that's just how the constitution uses those terms. so, for example, we know that the president pro-team are

officers of the united states. the constitution says they are. but we also know they don't hold an office under the united states because of the incompatibility clause that says they can't. so maybe the constitution to us today to a lay reader might look a little odd. the distinguish between office and officers, nouns, the distinction. that's how it works maybe, thoughts. >> the meaning of officer in the 1780 has today. a person who holds office. in particular context like the commissions clause, it appears that that's referring -- that is referring to a narrower class of officers. we know there are -- >> it says all. >> we know there are classes of officers. the president pro-team who don't get their commissions from the

president. we know the appointments clause refers to a class of officers who get their appointment from the constitution itself rather than from presidential appointment. people who get commissions from the president himself are not commissioned by the president. so if you read the appointments clause in line with the commissions clause, then the commissions clause is really talking about the president's power if one needs a commission, it's the president who grants it. i think it's important to bring us back to section three in particular. because that's 80 years. >> the distinction between office and officers. do you think it makes the distinction? >> it makes that distinction but the -- at least in section three and officer of the united states is a person who swears an oath and holds an office. the president pro-tem and speaker of the house swear a constitutional oath if they are a senator or representative in

congress in that separate non-official capacity. but i think that -- >> they are officer who don't hold an office. >> officers who may hold an office but don't swear and oath under article six in the official capacity. >> how can they hold an office under the income patability clause. it says they can't. >> i think that's a fair point. i have think that may be an exception to the general rule. one might consider them perhaps officers of the house and senate because they are appointed by those bodies and preside over them. >> the constitution says they are officers of the united states. some instances when you have an officer but not an office. >> those may be in exceptional circumstances. >> the concerns of some questions the states having such power over a national office, other questions about the different states having different standards of proof. they seem underscored by this

case at least the dissenting opinion below justice said i've been involved in the justice system for 33 years now. what took place here doesn't resemble anything i've seen in a courtroom and added. what transpired in this litigation fell woefully short of what due process demands, end quote. i don't know whether i agree or not. i won't take a position on that. the fact that someone is complaining not about the bottom line conclusion but about the processes used in the state would seem to -- that would be permitted seems to underscore the concerns that have been raised about state power. just wanted to give you a chance to address that. that was powerful language. again not disagreeing about the conclusion but about the very fairness of the process. >> yes, your honor. that language was with respect to justice not correct. president trump had a five-day trial in this case and the opportunity to call any

witnesses he wanted. the opportunity to cross-examine our witnesses. he had the opportunity to testify if he wanted to testify. of course, the process was expedited because ballot access decision are on a fast schedule. in this whole case from the trial court all to way to this court president trump has never identified a single process its than expert depositions he wanted to have that he didn't get. he had the opportunity for fact witness depositions, the opportunity to call witnesses remotely. he didn't use all of his time at trial. there was ample process here and this is how ballot access determinations in election cases are decided all the time. >> second question. some of the rhetoric of your position, i don't think it is your position. some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office. congress has enacted statutes, including one still in effect, section 2383 of title 18

prohibits insurrection. a federal criminal statute and if convicted shall be disqualified from holding any office. there is a federal statute on the books. president trump hasn't been charged with that. what are we to make of that? >> two things. section 2383 was initially enacted six years before section three. it wasn't meant as implementing legislation related to section three. i would emphasize by the time section three was ratified most confederates received criminal pardons. >> if the concern you have, which i understand is that insur insurrectionists should not hold federal office there is a tool to insure that doesn't happen. namely federal prosecution of insurrectionists. if convicted congress made clear you are automatically barred from holding a federal office. that tool exists, you agree and

could be used but has not. could be used against someone who committed insurrection. you agree with that. >> that's absolutely right. your honor. i would make the point the framers of section three understood criminal prosecutions weren't sufficient. oftentimes they go unfinished as was the case in the civil war. the least we can do is impose a civilcav cav the provision hasnn seen as necessary since then. last question, in trying to figure out what section three means to the extent it's so lieuive language or vegas language. what about the idea that we should think about democracy, think about the right of the people elect candidates of the choice people decide.

the decision has the effect of disenfranchising voters to a significant degree. and should that be something -- does that come in when we think about should we read section 3 this way or read it that way? what about the background principle if you agree of democracy? murmur i would like to make three points on that justice kavanaugh that you. first, constitutional safeguards are for the purpose of safeguarding our domenic crazy not just for the next election cycle but for generations to come. section 3 designed to protect our democracy in that very way. the flamers knew from painful experience those violently broke their oaths to the constitution couldn't be trusted to hold power then because they could dismantle our constitutional democracy from within. they created a democratic safety salve, president trump can go ask congress to give him amnesty by two thirds votes. unless he does that our constitution protects us

insurrectionist. the reason we are here is that president trump tried to disenfranchise 80 million americans who voted against him and the constitution doesn't require that he be given another chance. >> justice kavanaugh: thank you. >> justice barrett? >> justice barrett: general rule is absent rare circumstances state courts and federal courts share authorities. state courts have authorities to enforce the constitution. there are certain limits to that, certain situations in which the constitution itself preelements the state's ability to resolve constitutional questions. tar bouquets is one and you said earlier once a president is elected you accepted that a state couldn't do anything about that use it to goat the secretary of state or anyone else out of office. i assume instructionist preemption am i right? murmur yes, your honor.

>> justice barrett: i want to clarify whether a that means for your argument. your eggs are really in the basket of the elector's clause. article 1 basket. all of the questions that people have been asking have suggested that there's a problem with giving a single state the authority to render a decision that would have an effect on the national election. but you are saying that those structural concerns which might otherwise lead to the kind of result you would accept after someone is in office are overcome by the electors clause. >> absolutely. states run presidential elections that's very clear from article 2. once states have selected the electors and have voted states have no more power over the candidate nominated for president. until then, the states do have the power to adjudicate those issues. >> justice barrett: thank you. robert robert justice jackson? >> justice jackson: when i asked you earlier about the uniformity concern and troubling potential disform at this of having

different states enforce section 3 with respect to presidential elections you seemed to point to history in a certain way. you said, i think that the framers actually envisioned states section 3 at least where there were insurgents and confederates. in my view of the history, i'm wondering really whether presidential elections were such a circumstance that the framers actually envisioned states enforcing section 3 with respect to presidential elections as opposed to senatorial elections, representatives, the sort of more local concerns. so, can you speak to the argument that really section 3 was about preventing the south from rising again in the context of these sort of local elections as opposed to focusing on the

presidency? murmur two points on that justice jackson. first is that as i discussed earlier, there isn't the same history of states regulating ballot access at this time, so ballot access rules to restrict presidential candidates wouldn't have existed. they wouldn't have been raised one way or another. jackson jaxz i'm not making distinction between ballot access and anything else. murmur understood. the more broad point i want to make what is very clear from the history framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the united states. >> justice jackson: why didn't they put the word president in the very enumerated list in section 3? the thing that really is troubling to me is i totally understand your argument, but they were listing people that were barred and president is not there. and so i guess that just makes me worry that maybe they weren't focusing on the president and, for example, the fact that electors of vice president and

president are there, suggests that really what they thought was if we're worried about the charismatic person, we're going to bar insurrectionists electors and, therefore, that person is never going to rise. murmur this came up in the debates in congress over section 3 where johnson said why haven't you included president and vice president in the language? and senator moore responds "we have. look at the language any office under the united states." >> justice jackson: yes, doesn't that at least suggest ambiguity and this sort of ties into justice kavanaugh's point. in other words, we had a person right there at the time saying what i'm saying. the language here doesn't seem to include president. why is that? and so if there is an ambiguity, why would we construe it to, as justice kavanaugh pointed out, against democracy? murmur johnson came back and agreed with that reading. any office is clear the constitution say