The nation’s highest court doesn’t seem certain that Colorado alone has the power to determine if former President Donald Trump’s actions rise to the level of “insurrection” such that he should be excluded from ballots.
During brief oral arguments Thursday, the justices of the U.S. Supreme Court did not sound persuaded by the legal interpretations of lawyers representing a half-dozen Centennial State voters and state officials working to remove Trump from their state’s ballot.
Both conservative and liberal-leaning justices seemed ready to reject the attempt to remove Trump from the running under Section 3 of the 14th Amendment. Justices seemed particularly concerned with whether such a determination should first be made by Congress, lest states begin individually disqualifying potential presidential contenders, and whether it were wise to accept the premise that, as Associate Justice Elaina Kagan put it, “a single state should decide who gets to be president of the United States.”
If the state supreme court’s decision is allowed to stand, Chief Justice John Roberts noted, there will be nothing to prevent any state from arbitrarily declaring candidates — be they Democratic or Republican — ineligible to seek the nation’s highest office.
“It’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts said.
Some of the justices, including President Joe Biden’s appointee, Associate Justice Ketanji Brown Jackson, seemed unconvinced that the text of the 14th Amendment is written to include the president as an officer of the government.
There are legal scholars who have maintained that Trump is ineligible to seek the presidency and should be removed from the ballot because of his involvement — or if not his involvement, his lack of action — in the sacking of the U.S. Capitol on January 6, 2021. If Trump’s actions or lack thereof on that day meet the bar for “insurrection,” then the 14th Amendment, passed following the U.S. Civil War could theoretically make him ineligible to return to the White House.
“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,” Section Three reads, in part.
The law, which can be overridden by Congress if applied, was previously used to remove former Confederate military members from their political posts. It has never been applied to an office anywhere near as important as the presidency, which Trump’s lawyers have maintained falls outside the scope of the amendment.
The 45h President’s attorneys told the court that January 6 did not meet the bar to be called an insurrection, and that even if it did Trump wasn’t a participant such that his actions trigger Section 3. Even if it were an insurrection and even if Trump had kicked in the doors of Congress himself, since he’s seeking the presidency and not a Senate or House seat, the law doesn’t apply to the commander-in-chief or a candidate, his lawyers said.
Lawyers for Colorado and a set of four Republican and two independent voters said that narrow reading of the 14th Amendment is an absurd one and that of course the law applies to the Presidency. The law also requires no action on the part of Congress, they said, and is self-executing.
Trump, who was also declared ineligible to seek the Republican primary nomination in Maine by that state’s top elections official, is currently leading in the party’s presidential primary by more than 55 points in a field narrowed to include just the former president and former U.N. Ambassador Nikki Haley.
Both the Colorado decision and the Maine decision are on hold pending a ruling by the Supreme Court. Though the court under Roberts has typically issued its rulings in June, there is some expectation justices will move swiftly to settle the matter ahead of the 2024 election.
Speaking from his home in Florida, the former president said that the proceedings were a “beautiful thing to watch.”
“I hope that democracy in this country will continue,” Trump said.
Herald wire services contributed.
