DENVER — The U.S. Supreme Court is expected to determine whether former President Donald Trump can keep running for the White House.
Trump on Wednesday appealed a ruling from the Colorado Supreme Court that he's ineligible for the presidency because he violated a rarely used constitutional prohibition on those who hold office having “engaged in insurrection.” On Tuesday, he appealed a similar ruling from Maine's Democratic secretary of state, but it's the Colorado appeal that's most significant.
That's because the nation's highest court has never before ruled on Section 3 of the 14th Amendment, adopted in 1868 to prevent Confederates from regaining their former government posts. Whatever the Supreme Court decides applies to Colorado will apply to all other 49 states, including Maine.
Trump remains on the ballot in both states until the appeals are done.
What is Section 3?
The provision is only two sentences and seems relatively straightforward.
Section 3 reads: “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. But Congress may by a vote of two-thirds of each House, remove such disability.”
Nice and simple, right?
Not so fast, Trump's attorneys say.
What does Trump's legal team contend?
Trump's lawyers say this part of the Constitution wasn't meant to apply to the president. Notice how it specifically mentions electors, senators and representatives, but not the presidency, they say.
Also, it says those who take an oath to “support” the United States, but the presidential oath doesn't use that word — instead, the Constitution requires presidents to say they will “preserve, protect and defend” the document. And, finally, Section 3 talks about any other “officer” of the United States, but Trump's lawyers argue that language is meant to apply to presidential appointees, not the actual president.
That was enough to convince the initial Denver judge who heard the case, who agreed it wasn't clear that Section 3 applied to the president. But that judge's decision was reversed by the Colorado Supreme Court.
The majority of the state's highest court wrote: "President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land.”
What are the Trump team's other arguments?
His lawyers contend that the question of who is covered by a rarely used, once obscure clause is political and cannot be decided by unelected judges. They contend that Jan. 6 wasn't an insurrection — it wasn't widespread, they say, and didn't involve large amounts of firearms or other markers of sedition. They say Trump didn't “engage” in anything that day other than in exercising his protected free speech rights.
Their final argument is the one that convinced the dissenting three of Colorado's seven high court justices — the ad hoc way the court went about finding that Trump violated Section 3, in turn, violated the former president's due process rights. They contend he was entitled to some structured, adversarial legal process rather than a court in Colorado trying to figure out if the Constitution applied to him.
That gets at the unprecedented nature of the cases. Section 3 has rarely been used after an 1872 congressional amnesty excluded most former Confederates from it. The U.S. Supreme Court has never heard such a case. Arguments about legal precedents go back to a sole 1869 opinion from Chief Justice Salmon Chase, who was hearing an appeal as a circuit judge rather than for the high court.
Trump's critics have filed dozens of lawsuits seeking to disqualify him, and all failed until Colorado. But they usually failed because the judges dodged the constitutional issues or declared themselves unqualified to rule on them. Presuming it takes the case — and every observer expects it will — the Supreme Court doesn't have much room left to dodge.
What will the Supreme Court do and when?
Colorado's Republican Party has already appealed the Colorado ruling, so the justices have had time to think about what they'll do.
The high court has dozens of different ways it can rule.
It could uphold the Colorado ruling and say Trump is no longer qualified to be president.
The court could say Trump is qualified to be president. That would end all Section 3 challenges, including in Maine.
It could dodge by overruling Colorado on a technicality about the procedures used to get the case there and set itself up for another case in the fall.
It could say Congress makes the final decision.
When the court might rule is another mystery. In Bush v. Gore, the 2000 case that ended the Florida recount and made George W. Bush president, the court ruled in three days. The court could also go slowly and wait until the end of its term on June 30 to rule.
Obviously, that could open the door to more chaos and leave it uncertain during the primaries whether Republicans are voting for someone qualified to be president. That's why all the parties have sought an expedited appeal and a ruling as quickly as possible.
Aren't Republicans just going to rule for Trump?
The Colorado high court’s seven justices were all appointed by Democrats. Six of the nine U.S. Supreme Court Justices were appointed by Republicans, three by Trump.
But the Colorado court split 4-3 on the ruling. The majority quoted a ruling from Neil Gorsuch, one of Trump’s conservative Supreme Court appointees, when he was a federal judge in Colorado. He ruled then that the state properly kept a naturalized citizen born in Guyana off the presidential ballot because he didn’t meet the constitutional qualifications.
Democrats have already begun to suggest that Justice Clarence Thomas should recuse himself because his wife, a Republican activist, supported Trump's effort to overturn his 2020 election loss to President Joe Biden. Thomas has only recused himself from one other case related to the 2020 election and so far the people trying to disqualify Trump haven't asked him to do so here.
Some of the strongest advocates of using Section 3 against Trump have been prominent conservative legal theorists and lawyers who argue that courts have to follow the actual words of the Constitution. They argue there’s no wiggle room here — Trump is clearly disqualified.
The question of whether Trump is qualified hasn't broken on traditional partisan lines in the legal world, partly because this is completely new legal ground, it’s hard to predict how individual justices will rule based on their ideology.
But the reason most legal observers expect Trump to win at the high court is because courts are very hesitant to limit voters’ choices. There’s even a term for that — the “political question,” whether a legal dispute is better settled by the people the voters have selected to make the laws than by unelected judges.
If that doesn't happen, some critics warn, and Trump's campaign is ended by Section 3, expect it to become weaponized in political races. Imagine a world where any politician's career can end in a moment when a court or an election official decides that person “engaged in insurrection,” they caution.
Unless the high court shuts this down, they warn, Trump might only be the start.
