The Bombshell Colorado Ruling

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Section 3 of the 14th Amendment says:

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.

The provision was written after the Civil War to prevent members of the Confederacy from holding office. “This is a provision of the Constitution that we just didn’t expect to start using again,” said Jessica Levinson, a professor at Loyola Law School.

The Colorado case hinged on several questions:

  • Was it an insurrection when Trump supporters stormed the Capitol on Jan. 6, 2021, trying to stop the certification of the 2020 election?

  • If so, did Trump engage in that insurrection through his messages to his supporters beforehand, his speech that morning and his Twitter posts during the attack?

  • Do courts have the authority to enforce Section 3 of the 14th Amendment without congressional action?

  • And does Section 3 apply to the presidency?

The majority of the Colorado justices concluded that the answers to each of those questions was yes. The three dissenting Colorado justices disagreed on procedural grounds, concluding that the court had overstepped its authority.

“Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office,” Justice Carlos Samour Jr. wrote in his dissent.

Trump has said he will immediately appeal the ruling to the U.S. Supreme Court. It could take some time for the justices to grapple with the case’s many interlocking legal issues, which are novel, complex and extraordinarily consequential.

The justices, who are also expected to rule on other legal cases that involve Trump in the run-up to the election, may be reluctant to withdraw from the voters the decision of how to assess Trump’s conduct.

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