Quick Take On SCOTUS Colorado “Insurrection” Oral Argument: Trump Likely To Stay On Ballot

WILLIAM A. JACOBSON FEB 8, 2024 12:33 PM

I listened to the SCOTUS oral argument in Anderson v. Trump, the case involving Trump’s disqualification from the Colorado ballot due to his alleged participation in an “insurrection” on January 6, 2021, which the proponents claim automatically disqualifies him under Section 3 of the 14th Amendment.

Section 3.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.***Section 5.The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Making predictions based on oral arguments normally is risky, but I’ll take that risk: The Supreme Court will reverse not on the merits of whether Trump committed insurrection (that is not before them), but on any one of a number of issues raised that the Colorado Supreme Court exceeded it’s authority, including among others,

• Section 3 only bars holding office, not running for office  so it’s premature to consider the issue, particularly since Trump could be relieved of any disability by congressional vote after the election but before taking office (I think this is the clear winner);
• Trump (as President) was not an “officer” of the United States and the Office of the President is not enumerated in Section 3;
• Section 3 is not self-executing, congress provides the remedy, and there is a congressional insurrection act under which Trump has not even been charged.
• States don’t get to decide this question, leaving open the possibility of conflicting state rulings.

That’s not a complete catalog, but the high points that jumped out at me.

Even many lefty legal observers see this as a lost cause:

I’m not sure it’s 9-0, Sotomayor may be a dissent, but it sure is looking like a strong majority if not unanimous result of SCOTUS saying: Not us, not now.

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