PRELIMINARY PRINT

Volume 601 U. S. Part 1 Pages 100–123

OFFICIAL REPORTS OF

THE SUPREME COURT March 4, 2024

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. 100 OCTOBER TERM, 2023

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TRUMP v. ANDERSON et al. certiorari to the supreme court of colorado No. 23–719. Argued February 8, 2024—Decided March 4, 2024 Six Colorado voters (respondents here) fled a petition in Colorado state court against former President Donald J. Trump and Colorado Secretary of State Jena Griswold, contending that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Trump, who seeks the Presidential nomination of the Republican Party in this year's election, from becoming President again. Section 3 provides: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any offce, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an offcer of the United States, or as a member of any State legislature, or as an executive or judicial offcer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Page Proof Pending Publication Congress may by a vote of two-thirds of each House, remove such disability.” According to the respondents, Section 3 applies to the former President because after taking the Presidential oath in 2017, he intentionally in- cited the breaching of the Capitol on January 6, 2021, in order to retain power. The respondents claim that the former President is therefore not a qualifed candidate under Colorado law and may not be placed on the Presidential primary ballot. The state District Court found that former President Trump had “engaged in insurrection” within the meaning of Section 3, but nonetheless denied the respondents' petition. It concluded that the Presidency, which Section 3 does not mention by name, is not an “offce . . . under the United States” and the President is not an “offcer of the United States” within the meaning of that provi- sion. See App. to Pet. for Cert. 184a–284a. A divided Colorado Su- preme Court reversed the District Court's operative holding that Sec- tion 3 did not apply to the former President, and otherwise affrmed. It accordingly ordered Secretary Griswold not to list former President Trump on the Presidential primary ballot or count any write-in votes cast for him. See Anderson v. Griswold, 543 P. 3d 283. Held: Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal offceholders and can- didates, the Colorado Supreme Court erred in ordering former Presi- dent Trump excluded from Colorado's 2024 Presidential primary ballot. Cite as: 601 U. S. 100 (2024) 101

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(a) Ratifed after the Civil War, the Fourteenth Amendment “ex- pand[ed] federal power at the expense of state autonomy” and thus “fun- damentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59. Section 3 was designed to help ensure an enduring Union by preventing former Confederates from returning to power. Because Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualifcation from holding a wide array of offces—rather than by granting rights to all, it is necessary, as Chief Justice Chase concluded and the Colorado Supreme Court recognized, to “ `ascertain[ ] what particular individuals are embraced' ” by the provision. 543 P. 3d, at 316 (quoting Griffn's Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). “To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and en- forcements of decisions, more or less formal, are indispensable.” Id., at 26. The Constitution empowers Congress to prescribe how those determi- nations should be made. The relevant provision is Section 5 of the Fourteenth Amendment, which enables Congress, subject to judicial re- view, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536. That Page Proof Pending Publication power is critical when it comes to Section 3. Indeed, shortly after rati- fcation, hundreds of men were holding offce in violation of Section 3, prompting Congress to pass Section 5 enforcement legislation. See En- forcement Act of 1870, 16 Stat. 143–144. (b) States have sovereign power over the qualifcations and elections of their own offcers, see Taylor v. Beckham, 178 U. S. 548, 570–571. But States lack the constitutional authority to enforce Section 3 with respect to federal offces, especially the Presidency. Because federal offcers “ `owe their existence and functions to the united voice of the whole, not of a portion, of the people,' ” powers over their election and qualifcations must be specifcally “delegated to, rather than reserved by, the States.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (quoting 1 J. Story, Commentaries on the Constitution of the United States § 627, p. 435 (3d ed. 1858)). Not even the respondents contend that the Constitution authorizes the States to somehow remove sitting federal offceholders who may be violating Section 3. And the text of the Fourteenth Amendment, which speaks only to enforcement by Congress, does not affrmatively delegate to the States the power to enforce Section 3 against candidates for federal offce. Moreover, because its substantive provisions “embody signifcant limitations on state authority,” Fitzpatrick v. Bitzer, 427 U. S. 445, 456, it would be incongruous to read this particular Amend- ment as silently granting the States that power. The only other plausi- 102 TRUMP v. ANDERSON

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ble constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate con- gressional and Presidential elections, respectively. See Art. I, § 4, cl. 1; Art. II, § 1, cl. 2. But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal of- fceholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power. The text of Section 3 reinforces these conclusions. Its fnal sentence empowers Congress to “remove” any Section 3 “disability” by a two- thirds vote of each House. Congress may exercise that amnesty power at any time, and historically, Congress sometimes removed Section 3 disabilities postelection to ensure that some of the people's chosen candi- dates could take offce. But if States were free to enforce Section 3 by barring candidates from running in the frst place, Congress would be forced to exercise its disability removal power before voting begins. It is implausible to suppose that the Constitution affrmatively delegated to the States the authority to impose such a burden on congressional power with respect to candidates for federal offce. Cf. McCulloch v. Maryland, 4 Wheat. 316, 436. Nor have the respondents identifed any tradition of state enforce- Page Proof Pending Publication ment of Section 3 against federal offceholders or candidates in the years following ratifcation of the Fourteenth Amendment. Instead, it is Con- gress that has long given effect to Section 3 with respect to would-be or existing federal offceholders. And while Section 5 limits congressional legislation enforcing Section 3 by requiring Congress to “tailor its legis- lative scheme to remedying or preventing” the specifc individual con- duct that Section 3 prohibits, Florida Prepaid Postsecondary Ed. Ex- pense Bd. v. College Savings Bank, 527 U. S. 627, 639, state enforcement might be argued to sweep more broadly. It is implausible that the Con- stitution grants the States freer rein than Congress to decide how Sec- tion 3 should be enforced with respect to federal offces. Finally, state enforcement with respect to the Presidency would raise heightened concerns. “[I]n the context of a Presidential election, state- imposed restrictions implicate a uniquely important national interest.” Anderson v. Celebrezze, 460 U. S. 780, 794–795 (footnote omitted). Con- ficting state-by-state resolution of the question whether Section 3 bars a particular candidate for President could result not just from differing views of the merits, but also from variations in state law governing the proceedings that are necessary to make Section 3 disqualifcation determinations. The “patchwork” that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. U. S. Term Limits, 514 U. S., at 822. Nothing in Cite as: 601 U. S. 100 (2024) 103

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the Constitution requires that the Nation endure the chaos that could result. 543 P. 3d 283, reversed.

Jonathan F. Mitchell argued the cause for petitioner. With him on the briefs were Scott E. Gessler, David A. War- rington, Gary M. Lawkowski, and Harmeet Dhillon. Jay Alan Sekulow, Jordan A. Sekulow, Stuart J. Roth, Andrew J. Ekonomou, Jane Serene Raskin, Walter M. Weber, Cecilia Noland-Heil, Michael W. Melito, and Benjamin P. Sisney fled briefs for respondent Colorado Republican State Cen- tral Committee urging reversal. Jason Murray argued the cause for respondent Anderson et al. With him on the brief were Donald Sherman, Nikhel Sus, Jonathan Maier, Martha Tierney, Mario Nicolais, Sean Grimsley, Eric Olson, and Isabel Broer. Shannon Wells Stevenson, Solicitor General of Colorado, argued the cause for respondent Griswold. With her on the brief were Philip J. Weiser, Attorney General, Natalie Hanlon Leh, Page Proof Pending Publication Deputy Attorney General, Dayna Zolle Hauser, Michael Kotlarczyk, Michael McMaster, Joseph Michaels, LeeAnn Morrill, and Helen Norton.*

*Briefs of amici curiae urging reversal were fled for the State of Indi- ana et al. by Theodore E. Rokita, Attorney General of Indiana, James A. Barta, Solicitor General, and Melinda R. Holmes, Deputy Attorney General, by Patrick Morrisey, Attorney General of West Virginia, Michael R. Wil- liams, Principal Deputy Solicitor General, and David E. Gilbert, Deputy Attorney General, by Rusty D. Crandell, Linley Wilson, and Sam M. Hayes, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Tim Griffn of Arkansas, Ashley Moody of Florida, Christopher M. Carr of Georgia, Raúl Labrador of Idaho, Brenna Bird of Iowa, Russell Coleman of Kentucky, Liz Murrill of Louisiana, Lynn Fitch of Mississippi, Andrew Bailey of Missouri, Austin Knudsen of Montana, Michael T. Hilgers of Nebraska, John M. Formella of New Hampshire, Drew H. Wrigley of North Dakota, David A. Yost of Ohio, Gentner Drum- mond of Oklahoma, Alan Wilson of South Carolina, Marty Jackley of South Dakota, Jonathan Skrmetti of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah, Jason Miyares of Virginia, and Bridget Hill of Wyoming; for the State of Kansas by Kris W. Kobach, Attorney General, and Anthony J. Powell, Solicitor General; for Chuck Gray, Secretary of 104 TRUMP v. ANDERSON

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Per Curiam. A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Donald J. Trump, who seeks the Presidential nomi- State of Wyoming, by Judd E. Stone II, Ari Cuenin, and Gene P. Hamil- ton; for America's Future et al. by William J. Olson, Jeremiah L. Morgan, Robert J. Olson, Patrick McSweeney, J. Mark Brewer, and John I. Harris III; for Christian Family Coalition (CFC) Florida, Inc., by Dennis Gross- man; for the Claremont Institute's Center for Constitutional Juris- prudence by John Yoo; for Former Attorney General Edwin Meese III et al. by Gene C. Schaerr, Kenneth A. Klukowski, Michael Boos, and Daniel H. Jorjani; for Former U. S. Attorney Robert S. Brewer, Jr. et al. by R. Trent Shores; for the James Madison Center for Free Speech by James Bopp, Jr.; for Judicial Watch, Inc., et al. by T. Russell Nobile, Robert D. Popper, and H. Christopher Coates; for the Kansas Republi- can Party et al. by Craig L. Uhrich; for the Landmark Legal Founda- tion by Michael J. O'Neill, Matthew C. Forys, and Richard P. Hutchison; for the Public Interest Legal Foundation et al. by J. Christian Adams and Kaylan Phillips; for the Republican National Committee et al. Page Proof Pending Publication by Patrick N. Strawbridge, Gilbert C. Dickey, Christopher O. Murray, and Julian R. Ellis, Jr.; for Sen. Ted Cruz et al. by R. Trent McCotter and Gene P. Hamilton; for Sen. Steve Daines et al. by Noel J. Francisco, John M. Gore, E. Stewart Crosland, and Hashim M. Mooppan; for Jack Coben by Larry E. Coben; for William Jones by Stephen Yag- man; for Larry Kidd by Larry J. Obhof, Jr., and Mark D. Wagoner, Jr.; for Kurt T. Lash by Christopher E. Mills; for James T. Lindgren by Benjamin M. Flowers; for Pearl O. Madrial by Harold Emmett Lucas; for Terpsehore “Tore” Maras et al. by Warner Mendenhall; for Peter Meijer by Charles R. Spies; for Vivek Ramaswamy by Jonathan Lien- hard, Phillip M. Gordon, and Edward Wenger; for Seth Barrett Tillman by Josh Blackman, C. Thomas Ludden, Robert W. Ray, R. Scott Reisch, and Jessica L. Hays; for Devin Watkins et al. by Devin Watkins, pro se; for Gavin M. Wax et al. by Edward Andrew Paltzik and Serge Krimnus; and for 102 Colorado Registered Electors by J. Gregory Troutman. Briefs of amici curiae urging affrmance were fled for Common Cause by Gregory L. Diskant, Jonah M. Knobler, and Kathay Feng; for the Con- stitutional Accountability Center by Elizabeth B. Wydra and Brianne J. Gorod; for Former Colorado Secretary of State Mary Estill Buchanan by Mi- chael A. Caplan; for Former Republican Governors by Jeffrey A. Mandell, Cite as: 601 U. S. 100 (2024) 105

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nation of the Republican Party in this year's election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secre-

Douglas M. Poland, and Rachel E. Snyder; for Former Republican Mem- bers of Congress by Faith E. Gay; for Retired State Supreme Court Jus- tices by Ronald A. Fein, John C. Bonifaz, Ben T. Clements, Courtney Hostetler, and Charles N. Nauen; for the San Francisco Taxpayers Associ- ation et al. by Paul D. Scott; for Floyd Abrams et al. by Steven A. Hirsch; for Carol Anderson et al. by Erica Grossman and John Holland; for Josh Autry, pro se; for Jeremy Bates, pro se; for David P. Cullenberg et al. by Robert A. Stein; for David M. Driesen et al. by David M. Driesen, pro se; for G. Antaeus B. Edelsohn by Joan D. B. Edelsohn; for Sherrilyn A. Ifll, pro se; for J. Michael Luttig et al. by Richard D. Bernstein and Nancy A. Temple; for Brian J. Martin by Wallace K. Lightsey; for Kermit Roosevelt by Robert S. Peck; for Ilya Somin by Gerson H. Smoger; and for David B. Tatge, pro se. Briefs of amici curiae were fled for Michigan Secretary of State Joce- lyn Benson by Ann M. Sherman, Solicitor General, Heather S. Meingast, Division Chief, and Erik A. Grill, Assistant Attorney General; for the Page Proof Pending Publication Secretaries of State of Missouri et al. by Barbara A. Smith, Jesus A. Osete, and Robert M. Thompson; for American Historians by Jonathan B. Miller, Joshua A. Rosenthal, and Michael Adame; for the Association of the Bar of the City of New York by Susan J. Kohlmann, Benjamin D. Alter, Marcy L. Kahn, Stephen L. Kass, and Jerry H. Goldfeder; for the Brennan Center for Justice et al. by Michelle S. Kallen, Wendy R. Weiser, Thomas P. Wolf, Eliza M. Sweren-Becker, Paul M. Smith, Adav Noti, Kevin P. Hancock, Benjamin L. Berwick, and Cameron O. Kistler; for the Capitol Police Offcers Present at the U. S. Capitol on January 6, 2021, by Damon Hewitt, Jon M. Greenbaum, Marc P. Epstein, William J. Blech- man, Elizabeth B. Honkonen, Lauren M. Blas, Lee R. Crain, and Mark J. Cherry; for Children's Rights Legal Scholars et al. by Julia A. Olson, Mathew W. dos Santos, Philip L. Gregory, and Catherine Smith, pro se; for Condemned USA by George T. Pallas; for Experts in Democracy by John Vail; for the League for Sportsmen et al. by Earl N. “Trey” Mayfeld III; for the NAACP Legal Defense & Educational Fund, Inc., by Anuja D. Thatte, Burt M. Rublin, Janai S. Nelson, and Samuel Spital; for Profes- sors and Legal Scholars by Mari Newman; for U. S. Term Limits by David H. Thompson and Brian W. Barnes; for Akhil Reed Amar et al. by Vikram David Amar, pro se; for Ryan Binkley et al. by Erick G. Kaardal; for David Boyle, pro se; for Orville Vernon Burton et al. by Michael J. Kasper; 106 TRUMP v. ANDERSON

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tary of state to exclude the former President from the Re- publican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him. Former President Trump challenges that decision on sev- eral grounds. Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal offceholders and candidates, we reverse. I Last September, about six months before the March 5, 2024, Colorado primary election, four Republican and two unaffliated Colorado voters fled a petition against former President Trump and Colorado Secretary of State Jena Gris- wold in Colorado state court. These voters—whom we refer to as the respondents—contend that after former President Trump's defeat in the 2020 Presidential election, he dis- rupted the peaceful transfer of power by intentionally organ- izing and inciting the crowd that breached the Capitol as Page Proof Pending Publication Congress met to certify the election results on January 6, 2021. One consequence of those actions, the respondents maintain, is that former President Trump is constitutionally ineligible to serve as President again. Their theory turns on Section 3 of the Fourteenth Amend- ment. Section 3 provides: “No person shall be a Senator or Representative in Con- gress, or elector of President and Vice President, or hold any offce, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an offcer of the United States, or as a member of any State legislature, or as an executive or judicial offcer of any State, to support the

for Edward B. Foley et al. by Michael B. Kimberly; for Mark A. Graber by Nelson Boyle; for Edward J. Larson, by J. Carl Cecere and Edward J. Larson, pro se; for Jordan L. Michelson by Anthony Robert Zelle; for Derek T. Muller by Heather Gebelin Hacker; for David E. Weisberg, pro se; and for Michael T. Worley by Burt M. Rublin. Cite as: 601 U. S. 100 (2024) 107

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Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” According to the respondents, Section 3 applies to the for- mer President because after taking the Presidential oath in 2017, he intentionally incited the breaching of the Capitol on January 6 in order to retain power. They claim that he is therefore not a qualifed candidate, and that as a result, the Colorado secretary of state may not place him on the pri- mary ballot. See Colo. Rev. Stat. §§ 1–1–113(1), 1–4–1101(1), 1–4–1201, 1–4–1203(2)(a), 1–4–1204 (2023). After a fve-day trial, the state District Court found that former President Trump had “engaged in insurrection” within the meaning of Section 3, but nonetheless denied the respondents' petition. The court held that Section 3 did not Page Proof Pending Publication apply because the Presidency, which Section 3 does not men- tion by name, is not an “offce . . . under the United States” and the President is not an “offcer of the United States” within the meaning of that provision. See App. to Pet. for Cert. 184a–284a. In December, the Colorado Supreme Court reversed in part and affrmed in part by a 4 to 3 vote. Reversing the District Court's operative holding, the majority concluded that for purposes of Section 3, the Presidency is an offce under the United States and the President is an offcer of the United States. The court otherwise affrmed, holding (1) that the Colorado Election Code permitted the respond- ents' challenge based on Section 3; (2) that Congress need not pass implementing legislation for disqualifcations under Section 3 to attach; (3) that the political question doctrine did not preclude judicial review of former President Trump's eligibility; (4) that the District Court did not abuse its discre- tion in admitting into evidence portions of a congressional Report on the events of January 6; (5) that the District Court 108 TRUMP v. ANDERSON

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did not err in concluding that those events constituted an “insurrection” and that former President Trump “engaged in” that insurrection; and (6) that former President Trump's speech to the crowd that breached the Capitol on Janu- ary 6 was not protected by the First Amendment. See An- derson v. Griswold, 543 P. 3d 283 (2023). The Colorado Supreme Court accordingly ordered Secre- tary Griswold not to “list President Trump's name on the 2024 presidential primary ballot” or “count any write-in votes cast for him.” Id., at 342. Chief Justice Boatright and Justices Samour and Berkenkotter each fled dissenting opinions. Id., at 342, 346, 361. Under the terms of the opinion of the Colorado Supreme Court, its ruling was automatically stayed pending this Court's review. See id., at 342. We granted former Presi- dent Trump's petition for certiorari, which raised a single question: “Did the Colorado Supreme Court err in ordering Page Proof Pending Publication President Trump excluded from the 2024 presidential pri- mary ballot?” See 601 U. S. ––– (2024). Concluding that it did, we now reverse. II A Proposed by Congress in 1866 and ratifed by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “funda- mentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59 (1996); see also Ex parte Virginia, 100 U. S. 339, 345 (1880). Section 1 of the Amendment, for instance, bars the States from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person . . . the equal protection of the laws.” And Section 5 confers on Congress “power to en- force” those prohibitions, along with the other provisions of the Amendment, “by appropriate legislation.” Cite as: 601 U. S. 100 (2024) 109

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Section 3 of the Amendment likewise restricts state auton- omy, but through different means. It was designed to help ensure an enduring Union by preventing former Confeder- ates from returning to power in the aftermath of the Civil War. See, e. g., Cong. Globe, 39th Cong., 1st Sess., 2544 (1866) (statement of Rep. Stevens, warning that without ap- propriate constitutional reforms “yelling secessionists and hissing copperheads” would take seats in the House); id., at 2768 (statement of Sen. Howard, lamenting prospect of a “State Legislature . . . made up entirely of disloyal elements” absent a disqualifcation provision). Section 3 aimed to pre- vent such a resurgence by barring from offce “those who, having once taken an oath to support the Constitution of the United States, afterward went into rebellion against the Government of the United States.” Cong. Globe, 41st Cong., 1st Sess., 626 (1869) (statement of Sen. Trumbull). Section 3 works by imposing on certain individuals a pre- Page Proof Pending Publication ventive and severe penalty—disqualifcation from holding a wide array of offces—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized, to “ `as- certain[ ] what particular individuals are embraced' ” by the provision. 543 P. 3d, at 316 (quoting Griffn's Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Jus- tice)). Chase went on to explain that “[t]o accomplish this ascertainment and ensure effective results, proceedings, evi- dence, decisions, and enforcements of decisions, more or less formal, are indispensable.” Id., at 26. For its part, the Col- orado Supreme Court also concluded that there must be some kind of “determination” that Section 3 applies to a par- ticular person “before the disqualifcation holds meaning.” 543 P. 3d, at 316. The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provi- sion is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “en- 110 TRUMP v. ANDERSON

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force” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the fu- ture, that all the sections of the amendment are carried out in good faith.” Cong. Globe, 39th Cong., 1st Sess., at 2768. Congress's Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legisla- tion less than a year after ratifcation, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding offce” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualifcation, ne- cessitating a “bill to give effect to the fundamental law em- braced in the Constitution.” Ibid. The enforcement mech- anism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by § 5 of the [Fourteenth] Amendment.” General Building Page Proof Pending Publication Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 385 (1982); see 16 Stat. 143–144.

B This case raises the question whether the States, in addi- tion to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state offce. But States have no power under the Con- stitution to enforce Section 3 with respect to federal offces, especially the Presidency. “In our federal system, the National Government pos- sesses only limited powers; the States and the people retain the remainder.” Bond v. United States, 572 U. S. 844, 854 (2014). Among those retained powers is the power of a State to “order the processes of its own governance. ” Alden v. Maine, 527 U. S. 706, 752 (1999). In particular, the States enjoy sovereign “power to prescribe the qualifcations of their own offcers” and “the manner of their election . . . Cite as: 601 U. S. 100 (2024) 111

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free from external interference, except so far as plainly pro- vided by the Constitution of the United States.” Taylor v. Beckham, 178 U. S. 548, 570–571 (1900). Although the Four- teenth Amendment restricts state power, nothing in it plainly withdraws from the States this traditional authority. And after ratifcation of the Fourteenth Amendment, States used this authority to disqualify state offcers in accordance with state statutes. See, e. g., Worthy v. Barrett, 63 N. C. 199, 200, 204 (1869) (elected county sheriff); State ex rel. Sandlin v. Watkins, 21 La. 631, 631– 633 (1869) (state judge). Such power over governance, however, does not extend to federal offceholders and candidates. Because federal off- cers “ `owe their existence and functions to the united voice of the whole, not of a portion, of the people,' ” powers over their election and qualifcations must be specifcally “dele- gated to, rather than reserved by, the States.” U. S. Term Page Proof Pending Publication Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quot- ing 1 J. Story, Commentaries on the Constitution of the United States § 627, p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to en- force Section 3 against federal offceholders and candidates. As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sit- ting federal offceholders who may be violating Section 3. Such a power would fout the principle that “the Constitution guarantees `the entire independence of the General Govern- ment from any control by the respective States.' ” Trump v. Vance, 591 U. S. 786, 800 (2020) (quoting Farmers and Me- chanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914)). Indeed, consistent with that principle, States lack even the lesser powers to issue writs of manda- mus against federal offcials or to grant habeas corpus relief to persons in federal custody. See McClung v. Silliman, 6 Wheat. 598, 603–605 (1821); Tarble's Case, 13 Wall. 397, 405– 410 (1872). 112 TRUMP v. ANDERSON

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The respondents nonetheless maintain that States may en- force Section 3 against candidates for federal offce. But the text of the Fourteenth Amendment, on its face, does not affrmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5. This can hardly come as a surprise, given that the substan- tive provisions of the Amendment “embody signifcant limi- tations on state authority.” Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). Under the Amendment, States cannot abridge privileges or immunities, deprive persons of life, lib- erty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (without thereby suffering reduced representation in the House). See Amdt. 14, §§ 1, 2. On the other hand, the Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States. It would be incongru- Page Proof Pending Publication ous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal offce. The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which au- thorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, § 4, cl. 1; Art. II, § 1, cl. 2.1 But there is little reason to think that these Clauses implicitly authorize the States to enforce Sec- tion 3 against federal offceholders and candidates. Grant- ing the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power.

1 The Elections Clause directs, in relevant part, that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Art. I, § 4, cl. 1. The Electors Clause similarly provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Elec- tors,” who in turn elect the President. Art. II, § 1, cl. 2. Cite as: 601 U. S. 100 (2024) 113

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The text of Section 3 reinforces these conclusions. Its fnal sentence empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each House. The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. See Brief for Re- spondents 50. In fact, historically, Congress sometimes ex- ercised this amnesty power postelection to ensure that some of the people's chosen candidates could take offce.2 But if States were free to enforce Section 3 by barring candidates from running in the frst place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. Perhaps a State may burden congressional authority in such a way when it exercises its “exclusive” sov- ereign power over its own state offces. Taylor, 178 U. S., at 571. But it is implausible to suppose that the Constitution affrmatively delegated to the States the authority to impose such a burden on congressional power with respect to candi- Page Proof Pending Publication dates for federal offce. Cf. McCulloch v. Maryland, 4 Wheat. 316, 436 (1819) (“States have no power . . . to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress”). Nor have the respondents identifed any tradition of state enforcement of Section 3 against federal offceholders or can- didates in the years following ratifcation of the Fourteenth Amendment.3 Such a lack of historical precedent is gener-

2 Shortly after the Fourteenth Amendment was ratifed, for instance, Congress enacted a private bill to remove the Section 3 disability of Nel- son Tift of Georgia, who had recently been elected to represent the State in Congress. See ch. 393, 15 Stat. 427. Tift took his seat in Congress immediately thereafter. See Cong. Globe, 40th Cong., 2d Sess., 4499–4500 (1868). Congress similarly acted postelection to remove the disabilities of persons elected to state and local offces. See Cong. Globe, 40th Cong., 3d Sess., 29–30, 120–121 (1868); ch. 5, 15 Stat. 435–436. 3 We are aware of just one example of state enforcement against a would-be federal offcer. In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional 114 TRUMP v. ANDERSON

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ally a “ `telling indication' ” of a “ `severe constitutional prob- lem' ” with the asserted power. United States v. Texas, 599 U. S. 670, 677 (2023) (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010)). And it is an especially telling sign here, because as noted, States did disqualify persons from holding state of- fces following ratifcation of the Fourteenth Amendment. That pattern of disqualifcation with respect to state, but not federal offces provides “persuasive evidence of a general un- derstanding” that the States lacked enforcement power with respect to the latter. U. S. Term Limits, 514 U. S., at 826. Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal offceholders. Shortly after ratifcation of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative offce—federal or state—in violation of Section 3, and made holding or at- Page Proof Pending Publication tempting to hold offce in violation of Section 3 a federal crime. §§ 14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153– 1154, 62 Stat. 992–993). In the years following ratifcation, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, § 5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§ 459–463, pp. 470–486 (1907). And the Confscation Act of 1862, which predated Section 3, effectively provided an additional proce- dure for enforcing disqualifcation. That law made engaging in insurrection or rebellion, among other acts, a federal

election, because—in the Governor's view—Section 3 made Christy ineli- gible to serve. But the Governor's determination was not fnal; a commit- tee of the House reviewed Christy's qualifcations itself and recommended that he not be seated. The full House never acted on the matter, and Christy was never seated. See 1 A. Hinds, Precedents of the House of Representatives § 459, pp. 470–472 (1907). Cite as: 601 U. S. 100 (2024) 115

Per Curiam

crime punishable by disqualifcation from holding offce under the United States. See §§ 2, 3, 12 Stat. 590. A suc- cessor to those provisions remains on the books today. See 18 U. S. C. § 2383. Moreover, permitting state enforcement of Section 3 against federal offceholders and candidates would raise seri- ous questions about the scope of that power. Section 5 lim- its congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” City of Boerne, 521 U. S., at 520. To comply with that limitation, Congress “must tai- lor its legislative scheme to remedying or preventing” the specifc conduct the relevant provision prohibits. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999). Section 3, unlike other pro- visions of the Fourteenth Amendment, proscribes conduct of individuals. It bars persons from holding offce after taking a qualifying oath and then engaging in insurrection Page Proof Pending Publication or rebellion—nothing more. Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and § 2383, refect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legis- lation by Congress to enforce Section 3. See Tr. of Oral Arg. 123. Any state enforcement of Section 3 against federal offce- holders and candidates, though, would not derive from Sec- tion 5, which confers power only on “[t]he Congress.” As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offces is simply implausible. Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns. “[I]n the con- 116 TRUMP v. ANDERSON

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text of a Presidential election, state-imposed restrictions im- plicate a uniquely important national interest.” Anderson v. Celebrezze, 460 U. S. 780, 794–795 (1983) (footnote omitted). But state-by-state resolution of the question whether Sec- tion 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President . . . represent[s] all the voters in the Nation.” Id., at 795 (emphasis added). Conficting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualifcation determina- tions. Some States might allow a Section 3 challenge to suc- ceed based on a preponderance of the evidence, while others might require a heightened showing. Certain evidence (like the congressional Report on which the lower courts relied here) might be admissible in some States but inadmissible hearsay in others. Disqualifcation might be possible only Page Proof Pending Publication through criminal prosecution, as opposed to expedited civil proceedings, in particular States. Indeed, in some States— unlike Colorado (or Maine, where the secretary of state re- cently issued an order excluding former President Trump from the primary ballot)—procedures for excluding an ineli- gible candidate from the ballot may not exist at all. The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record). The “patchwork” that would likely result from state en- forcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. U. S. Term Limits, 514 U. S., at 822. But in a Presidential election “the impact of the votes cast in each State is affected by the votes cast”— or, in this case, the votes not allowed to be cast—“for the various candidates in other States.” Anderson, 460 U. S., at 795. An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, Cite as: 601 U. S. 100 (2024) 117

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in different ways and at different times. The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforce- ment were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos— arriving at any time or different times, up to and perhaps beyond the Inauguration.

* * * For the reasons given, responsibility for enforcing Section 3 against federal offceholders and candidates rests with Con- gress and not the States. The judgment of the Colorado Supreme Court therefore cannot stand. All nine Members of the Court agree with that result. Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I ( joint opinion of Sotomayor, Kagan, and Jack- Page Proof Pending Publication son, JJ.); see also post, at 117–118 (opinion of Barrett, J.). So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to fed- eral offces. But they are important ones, and it is the com- bination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular ra- tionale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches. The judgment of the Colorado Supreme Court is reversed. The mandate shall issue forthwith. It is so ordered. Justice Barrett, concurring in part and concurring in the judgment. I join Parts I and II–B of the Court's opinion. I agree that States lack the power to enforce Section 3 against Presi- 118 TRUMP v. ANDERSON

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dential candidates. That principle is suffcient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority's choice of a different path leaves the remain- ing Justices with a choice of how to respond. In my judg- ment, this is not the time to amplify disagreement with stri- dency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.

Justice Sotomayor, Justice Kagan, and Justice Page ProofinPending Jackson, concurring the judgment. Publication “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women's Health Organization, 597 U. S. 215, 348 (2022) (Roberts, C. J., concurring in judgment). That fundamen- tal principle of judicial restraint is practically as old as our Republic. This Court is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases . . . must of necessity expound and interpret that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today, the Court departs from that vital principle, decid- ing not just this case, but challenges that might arise in the future. In this case, the Court must decide whether Colo- rado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualifed from holding federal offce under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, Cite as: 601 U. S. 100 (2024) 119

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we agree, create a chaotic state-by-state patchwork, at odds with our Nation's federalism principles. That is enough to resolve this case. Yet the majority goes further. Even though “[a]ll nine Members of the Court” agree that this in- dependent and suffcient rationale resolves this case, fve Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 117. Although only an individual State's action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualifcation for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and diffcult issues unnecessarily, and we therefore concur only in the judgment.

Page Proof Pending I Publication Our Constitution leaves some questions to the States while committing others to the Federal Government. Federalism principles embedded in that constitutional structure decide this case. States cannot use their control over the ballot to “undermine the National Government.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 810 (1995). That danger is even greater “in the context of a Presidential election.” Anderson v. Celebrezze, 460 U. S. 780, 794–795 (1983). State restrictions in that context “implicate a uniquely important national interest” extending beyond a State's “own borders.” Ibid. No doubt, States have signifcant “authority over presidential electors” and, in turn, Presidential elections. Chiafalo v. Washington, 591 U. S. 578, 588 (2020). That power, however, is limited by “other constitutional con- straint[s],” including federalism principles. Id., at 589. The majority rests on such principles when it explains why Colorado cannot take petitioner off the ballot. “[S]tate-by- 120 TRUMP v. ANDERSON

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state resolution of the question whether Section 3 bars a particular candidate for President from serving,” the major- ity explains, “would be quite unlikely to yield a uniform an- swer consistent with the basic principle that `the President . . . represent[s] all the voters in the Nation.' ” Ante, at 116 (quoting Anderson, 460 U. S., at 795). That is especially so, the majority adds, because different States can reach “[c]on- ficting . . . outcomes concerning the same candidate . . . not just from differing views of the merits, but from variations in state law governing the proceedings” to enforce Sec- tion 3. Ante, at 116. The contrary conclusion that a handful of offcials in a few States could decide the Nation's next President would be especially surprising with respect to Section 3. The Recon- struction Amendments “were specifcally designed as an expansion of federal power and an intrusion on state sover- eignty.” City of Rome v. United States, 446 U. S. 156, 179 Page Proof Pending Publication (1980). Section 3 marked the frst time the Constitution placed substantive limits on a State's authority to choose its own offcials. Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency. Cf. ante, at 112 (“It would be incongru- ous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal offce”). That provides a secure and suffcient basis to resolve this case. To allow Colorado to take a Presidential candidate off the ballot under Section 3 would imperil the Framers' vision of “a Federal Government directly responsible to the peo- ple.” U. S. Term Limits, 514 U. S., at 821. The Court should have started and ended its opinion with this conclusion. II Yet the Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Cite as: 601 U. S. 100 (2024) 121

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Court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legisla- tion under Section 5 prescribing the procedures to “ ` “ascer- tain[ ] what particular individuals” ' ” should be disqualifed. Ante, at 109 (quoting Griffn's Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). These mus- ings are as inadequately supported as they are gratuitous. To start, nothing in Section 3's text supports the majori- ty's view of how federal disqualifcation efforts must operate. Section 3 states simply that “[n]o person shall” hold certain positions and offces if they are oathbreaking insurrection- ists. Amdt. 14. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is “critical” (or, for that matter, what that word means in this context). Ante, at 110. In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insur- rectionist is disqualifed, “Congress may by a vote of two- Page Proof Pending Publication thirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congres- sional supermajority to remove a disqualifcation if a simple majority could nullify Section 3's operation by repealing or declining to pass implementing legislation. Even petition- er's lawyer acknowledged the “tension” in Section 3 that the majority's view creates. See Tr. of Oral Arg. 31. Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority's view. Section 5 gives Congress the “power to enforce [the Amendment] by appro- priate legislation.” Remedial legislation of any kind, how- ever, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualif- cation, like the two-term limit on the Presidency, do not re- 122 TRUMP v. ANDERSON

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quire implementing legislation. See, e.g., Art. II, § 1, cl. 5 (Presidential Qualifcations); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise. It sim- ply creates a special rule for the insurrection disability in Section 3. The majority is left with next to no support for its require- ment that a Section 3 disqualifcation can occur only pursuant to legislation enacted for that purpose. It cites Griffn's Case, but that is a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge. See ante, at 109 (quoting 11 F. Cas., at 26). Once again, even petitioner's lawyer distanced himself from fully embracing this case as probative of Section 3's meaning. See Tr. of Oral Arg. 35– 36. The majority also cites Senator Trumbull's statements that Section 3 “ `provide[d] no means for enforcing' ” itself. Ante, at 110 (quoting Cong. Globe, 41st Cong., 1st Sess., 626 (1869)). The majority, however, neglects to mention the Page Proof Pending Publication Senator's view that “[i]t is the [F]ourteenth [A]mendment that prevents a person from holding offce,” with the pro- posed legislation simply “afford[ing] a more effcient and speedy remedy” for effecting the disqualifcation. Id., at 626–627. Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 117, the majority re- solves many unsettled questions about Section 3. It fore- closes judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “ `tailor[ed]' ” to Section 3, ante, at 115, ruling out enforcement under general federal statutes re- quiring the Government to comply with the law. By resolv- ing these and other questions, the majority attempts to insu- late all alleged insurrectionists from future challenges to their holding federal offce. Cite as: 601 U. S. 100 (2024) 123

Sotomayor, Kagan, and Jackson, JJ., concurring in judgment

* * * “What it does today, the Court should have left undone.” Bush v. Gore, 531 U. S. 98, 158 (2000) (Breyer, J., dissenting). The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candi- date found to have engaged in insurrection off its ballot. The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that en- forcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course. Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national offce, and that is a Page Proof Pending Publication great and glorious thing. The men who drafted and ratifed the Fourteenth Amendment, however, had witnessed an “in- surrection [and] rebellion” to defend slavery. § 3. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President. Al- though we agree that Colorado cannot enforce Section 3, we protest the majority's effort to use this case to defne the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgment. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

None