The final weeks of 2023 saw two firsts in U.S. history. On December 19, 2023, the Colorado Supreme Court ruled in a 4-3 split decision that former President Donald J. Trump was disqualified from holding the office of President, and that to place him on the presidential ballot would violate the insurrection clause of Section Three of the Fourteenth Amendment to the U.S. Constitution.
Nine days later, on December 28, 2023, the Maine Secretary of State Shenna Bellows followed suit and, citing the same legal grounds, removed Mr. Trump from the Maine presidential ballot as well.
The question is now before the Supreme Court, and a ruling is expected before March 5 Super Tuesday, the date sixteen states will hold their presidential primaries.
The stakes in this case are enormous. If left to the courts of 50 states, litigation over a candidate’s eligibility for President would result in conflicting rulings and delayed transition of power because of our nation’s inability to meet certain constitutional deadlines for selecting its next president.
But the decision of the Colorado Supreme Court has consequences beyond just the next presidential election. If left undisturbed, it could affect the political stability of the nation, and expose the country to months, or perhaps years, of chaos.
For example, Congress has sole authority under the Constitution to remove a President from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” The power to accuse a President of an impeachable offense resides solely with the House of Representatives, while the power to remove a President resides solely with the Senate. These bodies exercised this power twice against the sitting President Trump, and both times, he was acquitted. The Colorado Supreme Court, without any trial or hearing, simply determined that Congress got it wrong – both times.
The Colorado ruling also throws confusion into the executive branch’s activities, too.
If the Colorado decision is correct, some have argued that the former President would be immediately disqualified at the moment he purportedly engaged in insurrection on January 6, 2021. Under this view, the actions that President Trump took between January 7 and January 20, including the bills he signed into law, would not be constitutionally valid. Thanks to Colorado, then, some would say that America was without a President for a full two weeks.
The Fourteenth Amendment provides that “no person shall … hold any office … who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” But just what type of conduct constitutes insurrection? At the time this language was adopted, the U.S. had just concluded a long and bloody civil war. Those who had taken up arms to defend the Confederacy were the ones targeted by this new amendment. Yet, several of those Confederate officers were later allowed to serve in Congress. Is a mere assemblage of people shouting enough to constitute an insurrection? If two people link arms across a sidewalk to block a poll worker from entering a ballot-counting site, does that hinder the transfer of power enough to constitute an outright insurrection? Taking the actions committed on January 6 at their worst, was there ever an actual effort to overthrow the government?
The Supreme Court has these and several other perplexing questions before it in this case. For students of the Constitution, these are indeed exciting times.
Larry L. Crain – www.Crainlaw.legal
