In a stunning and unexpected decision, the Colorado Supreme Court recently ruled that Trump is not eligible to be on the state ballot because of Article 3 of the 14th Amendment to the U.S. Constitution:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, 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 officer of the United States, or as a member of any State legislature, or as an executive or judicial officer 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.”
The Court ruled that Trump did engage in insurrection and is thus disqualified. Obviously, if this decision is upheld (along with similar suits in more than a dozen other states), it has enormous consequences for Donald Trump’s viability as a candidate to be President.
Not surprisingly, Trump and his supporters have vociferously decried the ruling — attacking it as a partisan abuse of power. However, it’s worth noting that the lawsuit was filed by a group of Republicans. Indeed, numerous prominent conservatives, including Micheal Luttig and George Conway, strongly support the decision and the logic behind it. So this is clearly not a simple case of a partisan divide.
Regardless, this case is headed to the Supreme Court — whose justices will ultimately determine the outcome.
So…what is the Supreme Court likely to do? How legally sound is the Colorado decision? What are the reasonable arguments for and against upholding the decision?
I’m not a lawyer. I don’t even play one on TV. But I am an informed reader of political commentary. And based on what I’ve read, here is where I believe things stand:
1. Who gets to decide if Trump is an insurrectionist?
Opponents of the ruling argue that its initial premise is false: The court cannot hold that Trump is an insurrectionist because he has never been convicted of the crime. Indeed, he has never even been indicted for it. Jack Smith notably declined to do so when he indicted Trump for election interference.
Proponents reply that the 14th Amendment does not cite any specific criteria for determining what qualifies as having “engaged in insurrection.” It certainly doesn’t state that a conviction is required. Judges often make determinations in situations like this — based on evidence presented at the hearings and/or using rulings in other courts as precedent. That’s what the Colorado Supreme Court did — and it is fully within its rights to do so.
Admittedly, a neutral observer might feel uneasy about such a consequential decision being made in the absence of any external determination of guilt. Especially so, given that the Court’s decision was a 4-3 split. But that’s politics. It doesn’t mean the decision is unjustified or legally incorrect.
In this regard, it’s worth noting that the Court was unanimous in its support of the factual finding that Trump had engaged in an insurrection. The split was only in terms of whether a state court had the authority to declare Trump ineligible as a result.
2. Is the amendment self-executing?
Opponents argue that, even if the article’s language supports a determination of ineligibility, it does not mean the courts have the authority to act on such a determination. In this view, an act of Congress is required.
Proponents convincingly dispute this, arguing that the amendment is indeed self-executing — in the same way that the 14th amendment’s “equal protection” clause doesn’t require an act of Congress in order for it to be enforced.
3. Is POTUS an “officer”?
Opponents argue that Article 3 does not specifically name the President as subject to the provision. The closest it comes is to include anyone who is “an officer of the United States.” According to this argument, the President is not an “officer.” In large part, this was the rationale that the lower court used when it allowed Trump to stay on the ballot — despite concluding that Trump had engaged in insurrection.
The Colorado Supreme Court overturned the lower court decision, rejecting the idea that the President is not an officer. The logic is that, if the authors did not intend to include the President, they would have specifically stated that. But they did not — because they viewed it as self-evident that the President falls under the domain of the Article. Indeed, the Presidency is repeatedly described as “an office.”
4. Shouldn’t the voters get to decide who they want as President?
This is the most problematic of the objections — because it forces a decision between two very strong arguments: one legal and the other political.
On the political side, the argument is that the Colorado Supreme Court decision is anti-democratic. It prohibits voters from ultimately determining whether or not to hold Trump accountable for his transgressions — and whether or not he should be President — and instead places it in the hands of a panel of judges.
From a political perspective, the ruling is indeed a “bad look.” It plays into the hands of those who want to falsely portray our government as under the control of some authoritarian “deep state” — whose goal is to unfairly persecute and prosecute Trump. In a perfect world, it would be far better for voters to decisively reject Trump at the ballot box. Of course, in a perfect world, we wouldn’t have losing candidates falsely claim that elections are rigged. Regardless, if the Supreme Court upholds the ruling, the political fallout will likely exceed anything we have seen since the 1960’s — and maybe since the Civil War.
However, it is not the job of the court to make decisions based on political considerations. If the Constitution plainly requires Trump be removed from the ballot, which is what the Colorado Supreme Court decided, then the Court has no choice but to rule as it did. Imagine if evidence emerged today that proved beyond any doubt that Trump was born in Russia. Due to this disqualifying factor, his name was removed from Presidential ballots. Would it be appropriate to argue that we should ignore the Constitution and instead let the voters decide if Trump should be President? Of course not. The Constitution prohibits anyone not born in the United States from being President. The voters don’t get to decide. Period. And that is the case here as well.
What will the Supreme Court do?
If I was forced to bet on the outcome, I would place my money on SCOTUS overturning the Colorado decision. The political pressure to do anything else is just too strong — especially so for a conservative-leaning Court majority.
Of course, they will not want to claim they have done so out of political considerations — even if that is their true rationale. So they won’t cite the “anti-democratic” argument as the basis for their ruling. Neither will they go for the “POTUS is not an officer” or “the amendment is not self-executing” technicalities. Instead, I predict they will claim that the Courts cannot be the sole arbiter of whether or not Trump engaged in an insurrection. They will point out, for example, that deciding whether or not someone is an insurrectionist is not as clear-cut as deciding whether someone is “natural-born” or not. It is more of a gray area — and that grayness will be their out. *
One other possibility is that they may accept the case but refrain from ruling on it in a timely manner — perhaps delaying a decision until June or beyond. This would be the judicial equivalent of a pocket veto. Trump’s name would likely wind up on the ballot in November, no matter how the Court ultimately rules.
That said, I believe there remains a small but significant possibility that SCOTUS will uphold the Colorado decision in a timely manner (or refuse to take the case at all, which will allow the Colorado ruling to stand). If the justices can free themselves from politics (a huge if), it’s the most legally defensible action for them to take. It’s what they should do.
IEB gets the word out that Trump should be off the ballot — in a banner drop on June 8.
What can you do?
We need to do all we can to pressure the courts and relevant state officials to take the appropriate actions to do what is legally correct — and keep Trump off election ballots.
As aptly put by CREW (Citizens for Responsibility & Ethics in Washington): “If we ignore Donald Trump’s effort to overthrow the government, we risk giving him the green light to do it again. That’s why this legal win is important—it puts up a real guardrail to protect our democracy from future insurrections.”
Make your voice heard in support of the Colorado Supreme Court decision. Head over to Free Speech For People’s 14point3 Campaign webpage. Here you’ll be able to sign a petition, download a sample letter to send to California’s Secretary of State, check out an assortment of other resources and get the latest news on developments in all the states where Trump’s eligibility is being challenged. Do it today!
*Update: January 3: Since posting this article, I have seen several reports that suggest, contrary to what I wrote, that the Supreme Court will rule on this matter by deciding on one of the more technical issues, such as whether the President is an “officer” or not. Doing so, especially if they rule in Trump’s favor on these matters, allows the Court to side-step the much more thorny and difficult-to-unravel issue of whether or not Trump is an insurrectionist. I do find these arguments persuasive. However, from a practical perspective, it doesn’t much matter. For Trump to remain on the ballot, the Court only needs to side with him on any one of these points. It doesn’t matter which one.
Update: March 4: The Supreme Court today issued its ruling on Trump’s potential disqualification to run for office, based on the 14th Amendment. In the article above, we offered our speculation on how it would turn out. How’d we do?
We predicted that the Court would rule in Trump’s favor. We were correct. It did. Not a tough call.
We further predicted that the Court would claim that “that the Courts cannot be the sole arbiter of whether or not Trump engaged in an insurrection.” We were mostly right here. But we missed the emphasis on state courts. In a unanimous decision, they asserted that state courts cannot decide this matter — or it would lead to “chaos.” In so doing, the skirted entirely the issue of whether or not Trump did lead an insurrection.
But, they didn’t stop there. They further asserted that the 14th amendment was not self-executing — meaning that Congress would need to enact legislation before this amendment could be invoked. But only 5 justices went along with this extension. We were wrong here. We predicted the Court would not do this.
And we still strongly believe that the 5-4 decision was a terrible wrong-headed ruling. As it stands, it pretty much means that the clause can never successfully be invoked — no matter what the transgressions of the person running for office. That should not be. There’s no other way to spin this: Today’s ruling was a huge win for Trump.
