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The Colorado Supreme Court issued a landmark decision Tuesday barring former President Donald Trump from voting in the 2024 election. The court held that the 14th Amendment to the U.S. Constitution, which prohibits Confederate rebels from ever holding federal office, applied to President Trump in his attempt to block the peaceful transfer of power on January 6, 2021. The United States Supreme Court should reverse Colorado’s error. That would allow the courts to become more involved in overseeing presidential elections and allow voters to decide for themselves whether Trump was responsible for the attack on the Capitol that day.
The Colorado Supreme Court became the first court to block former President Trump from voting on the theory that he falls under the 14th Amendment’s ban on insurrectionists from holding office again. However, the Colorado court erred in finding that the constitutional provision applied to the former president as a person who allegedly participated in the insurrection. It also incorrectly determined that the 14th Amendment to the U.S. Constitution prohibits former rebels from running for president. U.S. Supreme Court justices could decide that Trump is eligible to be elected president according to the text, structure, and history of the U.S. Constitution.
Article 2 of the Constitution lists only three qualifications for the president. The president must be a “natural-born citizen,” be at least 35 years old, and have resided in the United States for 14 years. After the Civil War, Congress proposed Section 3 of the Fourteenth Amendment, which excluded those who participated in the rebellion from federal office, and three-quarters of the states ratified it. It is important to read the text of that clause carefully.
No person may serve as a senator or representative of Congress, or as an elector for president and vice president, under the United States or under any state, or as an elector of the United States or under any state, unless he has previously taken the oath of office as a member of Congress. He shall not be eligible to hold any office, civil or military, under the State. engaged in rebellion or insurrection in support of the Constitution of the United States, either as a member of Congress or as an officer of the United States, or as a member of a state legislature, or as an executive or judicial officer of any state; There is. In the same way, or to give aid or comfort to one’s enemies. However, Congress can remove such obstacles by a two-thirds vote in each house.
Colorado Supreme Court excludes Trump from 2024 ballot
By adopting this clause, the victorious Union clearly wanted to prevent former Confederates from returning to Congress, the executive branch, or the military (after the war ended, some Southern states elected Confederate leaders to Congress).
However, the Colorado Supreme Court clearly erred in finding that this provision applied to former presidents. Article 3 enumerates that disqualification from future public office applies to the following persons who have engaged in rebellion or insurrection against the United States: b) “Official of the United States.” or c) a state employee. The constitutional text as interpreted by the Supreme Court carefully distinguishes between “officers of the United States” (including Cabinet members and their subordinates) and the president of the United States.
There are numerous instances in which the Constitution distinguishes between the president and “officers of the United States.” Just look at the text in section 3 itself. It prohibits insurrectionists from acting as “electors for the president and vice president.”
If the framers of the Fourteenth Amendment had wanted to bar presidents who participated in the rebellion from ever holding federal office again, they could have easily included “president” in the exact same sentence. . Or consider the Appointments Clause in Article II, Section 2 of the Constitution. Under this clause, the president himself, with the advice and consent of the Senate, can appoint “ambassadors, other ministers and consuls, justices of the Supreme Court, and all other officers of the United States.” Distinguished from “officials.” Article II, which establishes the executive branch, provides that the president is “elected,” rather than appointed, and gives him the responsibility to “delegate all officers of the United States.”
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This makes perfect sense. The constitution guarantees that the supreme leaders, the president and parliament, are democratically elected through elections. These then appoint lower-ranking “U.S. officials” through presidential nomination and Senate confirmation.
These same arguments show that the Constitution does not prohibit the future election of a person who has committed rebellion or rebellion as president. Article 3 prohibits rebels from being: a) “a senator or a member of the House of Representatives”; b) and “electors for president and vice president.” or c) “any government office, civil or military, under the control of the United States.”
Regardless of whether Trump’s alleged involvement in the January 6 attack or his attempt to force Vice President Mike Pence to reject valid electoral votes constitutes insurrection or insurrection. In any case, Trump may still run for president. Article 3 only prohibits him from becoming a member of parliament, an elector, a minister or a member of the military.
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The Constitution’s provisions regarding impeachment and removal of executive branch officials also draw a line between the president and “officers of the United States.” Article 2 expressly provides:[t]He is the president and vice president and all civil servants of the United States, shall be removed upon impeachment and conviction by the Senate.
If the Colorado Supreme Court is correct, the articles of impeachment contain clear overlap. That is, it should have only said that all U.S. officials can be impeached and removed from office, and not repeated “President and Vice President.” But as the great Chief Justice John Marshall warned long ago in McCullough v. Maryland, we cannot read any constitutional language as mere redundancy. You must give meaning to every word and clause.
The Constitution even requires that “officers of the United States” and the president take different oaths. In particular, only the latter must take an oath to “preserve, protect, and defend the Constitution of the United States to the best of their ability.” ” The former, on the other hand, must only pledge to “support this Constitution.”
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When the text of the Constitution is so clear, there is no need for courts to delve into the history of its drafting and ratification. However, the structure of the Constitution supports its text. Even if the United States were to face future presidents who might commit rebellion, the Founders already provided a mechanism to provide for their disqualification.
The Constitution also leaves Congress with the duty to enforce the Fourteenth Amendment, perhaps by passing a law specifying who is subject to disqualification, but Chief Justice Salmon Chase observed shortly after ratification that As it did, Congress has not done this.
This is not an apology for President Trump’s spreading baseless claims of election fraud or his efforts to stop the January 6 election tally. But as with the weak charges brought by the special counsel, efforts to hold President Trump accountable for his actions should not rely on: Distortion of our constitutional system.
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If prosecutors can prove that, they should charge him with rioting. If Congress can agree that Trump committed a crime, it should disqualify him.
The Supreme Court could step in to ensure that the American people determine President Trump’s responsibility for the events of January 6 at the polls in the 2024 presidential nominating and general elections.
Click here to read more articles by John Yoo