On Wednesday, Trump filed an appeal against the Colorado Supreme Court's decision declaring him ineligible for the presidency due to his alleged violation of a seldom-used constitutional ban on anybody holding public office after having "engaged in insurrection." He appealed a similar decision made by Maine's Democratic secretary of state on Tuesday, but the Colorado appeal is the one that matters most.
This is due to the fact that Section 3 of the 14th Amendment, which was ratified in 1868 to bar Confederates from resuming their previous government positions, has never before been decided upon by the country's top court. The decisions made on Colorado by the Supreme Court will also apply to the other 49 states, including Maine.
Until the appeals are resolved, Trump is still listed on the ballot in both states.
SECTION 3: WHAT IS IT?
With only two sentences, the provision appears to be rather simple.
In Section 3, it is stated that: "No person who has previously taken an oath to support the United States Constitution as a member of Congress, an officer of the United States, a member of a State legislature, an executive or judicial officer of any State, or a representative in Congress, shall be eligible to serve as a senator or representative in Congress, elect president and vice president, or hold any office, civil or military, under the United States or under any State. However, Congress may eliminate such a limitation by a vote of two thirds of each House.
Easy and straightforward, isn't that right?
Attorneys for Trump say, don't rush things.
WHAT IS THE CONTENTION OF TRUMP'S LEGAL TEAM?
This section of the Constitution, according to Trump's attorneys, was not intended to apply to the president. Observe how it mentions senators, representatives, and electors in particular, but not the presidency, they claim.
Additionally, it states that people who take an oath would "support" the United States; yet, the presidential oath does not use that term; rather, it requires presidents to declare their commitment to "preserve, protect, and defend" the Constitution. Last but not least, Section 3 refers to any other "officer" of the United States. However, Trump's legal team contends that this phrase refers to presidential appointees, not the president himself.
That was sufficient to persuade the first court to hear the case in Denver, who acknowledged that it was unclear whether Section 3 applied to the president. But the Colorado Supreme Court overturned that judge's ruling.
"President Trump wants us to hold that Section 3 disqualifies every oath-breaking 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," penned the majority of the state's highest court.
WHAT OTHER ARGUMENTS DOES THE TRUMP TEAM MAKE?
His attorneys argue that it is political and beyond the authority of unelected judges to determine who is protected by an obscure, seldom used clause. They argue that the events of January 6 were not indicative of an uprising because they were not widespread, involved a significant number of firearms, or displayed other signs of sedition. They claim that on that particular day, Trump only "engaged" in the exercise of his legally granted right to free speech.
Their last point, which persuaded three of Colorado's seven high court justices who were on the fence, is how the court arrived at its arbitrary conclusion that Trump's violations of Section 3 violated the former president's right to due process. They argue that rather than a Colorado court attempting to determine whether the Constitution applied to him, he was entitled to some sort of organized, adversarial legal procedure.
That addresses the cases' unique characteristics. Since the majority of former Confederates were not granted Section 3 amnesty by a congressional act in 1872, it has hardly been employed. Such a case has never been heard by the US Supreme Court. Disputes over legal precedent stem from a single ruling rendered by Chief Justice Salmon Chase in 1869 while presiding over an appeal as a circuit judge rather than for the supreme court.
Before Colorado, Trump's opponents had filed dozens of lawsuits in an attempt to remove him from office. All of them had failed. However, they typically fell short because the judges sidestepped the constitutional questions or said they were not competent to make decisions about them. If the Supreme Court decides to hear the case, as all observers anticipate it will, there won't be much room for maneuvering.
When and what will the Supreme Court do?
The Colorado verdict has already been appealed by the Republican Party in Colorado, giving the justices some time to consider their options.
The supreme court can rule in a myriad of ways.
It might maintain the Colorado decision and declare that Trump is ineligible to serve as president.
The court may rule that Trump is eligible to serve as president. All Section 3 challenges would stop as a result, including those in Maine.
On a technicality regarding the processes used to get the case there, it might avoid by overruling Colorado and positioning itself for another case in the autumn.
It can state that Congress has the last say.
Another unknown is when the court might rule. The court made its decision in Bush v. Gore, the 2000 lawsuit that put an end to the Florida recount and elected George W. Bush to the presidency, in three days. The court may also take its time and make its decision on June 30, when its term expires.
That might, of course, lead to even more chaos and make it unclear during the primary as to whether Republicans are supporting a presidential candidate deserving of support. All parties have therefore requested an expedited appeal and a prompt decision.
Republicans are only going to support Trump by ruling?
Democrats appointed all seven of the justices on the Colorado supreme court. Republicans appointed six of the nine justices on the U.S. Supreme Court, with Trump appointing three of them.
However, the Colorado court's decision was divided 4-3. One of Trump's conservative Supreme Court picks, Neil Gorsuch, made a decision while serving as a federal judge in Colorado, which was cited by the majority. At the time, he decided that the state had the right to prevent a naturalized citizen who was born in Guyana from running for president as he didn't fulfill the requirements outlined in the constitution.
Democrats have already started to advocate for Justice Clarence Thomas' recusal due to the fact that his spouse, a Republican activist, backed Trump's attempt to reverse his defeat to President Joe Biden in the 2020 election. Thus far, those attempting to disqualify Trump have not requested that Thomas recuse himself from this particular issue; he has only done so in one other case pertaining to the 2020 election.
Conservative legal scholars and practitioners who argue that courts must interpret the Constitution literally have been among the most vocal supporters of applying Section 3 against Trump. They contend that there is no space for doubt—Trump is obviously ineligible.
Due in part to the fact that this is entirely new legal territory and it is difficult to predict how each justice would rule based on their ideology, the debate over Trump's qualifications has not broken down along usual party lines in the legal community.
However, the majority of legal experts believe Trump will prevail in the Supreme Court because judges are extremely reluctant to restrict voters' options. The topic of whether it is preferable for elected officials to decide legal disputes rather than unelected judges is known as the "political question."
Some critics caution that if that doesn't happen and Section 3 ends Trump's campaign, then anticipate it being used as a weapon in elections. They warn, "Imagine a scenario in which a court or an electoral official finds that person "engaged in insurrection," and that politician's career may end in an instant.
They caution that this might just be the beginning and that Trump may not be the last.
