The Colorado Blast Failure


Section 3 of the 14th Amendment says:

No person may be a Senator or Representative in Congress, nor an elector for President and Vice President, nor hold any office, civil or military, in the United States or in any State, who, having previously taken the oath, as a member of Congress, or as officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, in support of the Constitution of the United States, shall have participated in an insurrection or rebellion against the same, or given aid or comfort to his enemies. But Congress can, by a two-thirds vote of each House, eliminate that disability.

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

The Colorado case hinged on several issues:

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

  • If so, did Trump participate in that insurrection through his previous messages to his followers, 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?

A majority of Colorado judges concluded that the answer to each of those questions was yes. The three dissenting Colorado judges disagreed on procedural grounds and concluded that the court had overstepped its authority.

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

Trump has said he will immediately appeal the ruling to the US Supreme Court. It could take some time for the justices to address the many intertwined legal issues in the case, which are novel, complex and extraordinarily consequential.

The judges, who are also expected to rule on other legal cases involving Trump in the run-up to the election, may be reluctant to take the decision of how to evaluate Trump's conduct away from voters.

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