Colorado's Trump Ruling Is Wrong and Disastrous

The Centennial State Sparks a Constitutional Crisis

I've always believed Christmas is the year's pinnacle of joy and its best day. Fun familial gatherings, heartfelt gratitude, joy with friends, and a forward-looking optimism towards the impending new year. Christmas inspires wishes for many gifts, both big and small. But the American people find themselves unwrapping a constitutional crisis, a rather unwelcome gift.

Last summer, Federalist Society scholars William Baude and Michael Stokes Paulsen wrote an article published in the University of Pennsylvania Law Review, arguing that Section Three of the Fourteenth Amendment disqualifies Donald Trump due to his role in the fraudulent elector's scheme and his "specific encouragement of January 6th," which would constitute his removal from the ballot due to his ineligibility to be president. While generally, in December, we all petition Santa, instead, for the holidays, several parties petitioned the Colorado Supreme Court, encouraged by this article, to disqualify Mr. Trump from the Colorado ballot.

In a recent and closely contested verdict, the Colorado Supreme Court, through its ruling in Anderson vs. Griswold, decreed by a slender margin of 4-3 that Mr. Trump is barred from featuring on the Republican primary ballot within the state, grounded in his disqualification for the presidency under Section 3 of the 14th Amendment. This decision, predictably, is not the final word on the matter; the court has suspended its implementation, as the U.S. Supreme Court will review it.

One might anticipate that a decision of this nature would cleave neatly along partisan divides, with a Democratic electorate firmly convinced of Mr. Trump's culpability in what they perceive as an attempted insurrection against the U.S. government. Conversely, enough Republican voters maintain the stance that the events of January 6th were essentially a peaceful protest, marred only by the incendiary actions of left-wing activists intent on sullying Mr. Trump's reputation.

Yet the plaintiffs in this case were a mix of Republicans and Independents. Contrary to popular belief, the Colorado Supreme Court also embodies a similar tapestry of political diversity. Indeed, it holds that Democratic governors have appointed all of Colorado's justices, but this is merely the result of the state's political metamorphosis. Once a reliably Republican bastion, Colorado has journeyed through the exciting drama of being a swing state, only to emerge in its current incarnation as a reliably Democratic stronghold.

These shifting political winds have locked the Republicans out of the governor's mansion in Denver since 2002. These trends are relevant because the state's Constitution mandates that justices on this court serve for terms of 10 years. So none of them have been appointed by Republicans, and five of these justices owe their appointments to Democrat John Hickenlooper.

Additionally, while perhaps tangential but noteworthy, is the fact that despite all justices being appointed by Democrats, this does not mean they are all Democrats. Chief Justice Brian Boatright, who led the dissent in this case, is a registered Republican, while three judges are registered Democrats, and an equally similar number are independents. In Colorado, Governors make their judicial choices from nominees put forward by a bipartisan commission comprised of non-lawyers, creating a legal system that, in theory, transcends partisan biases.

What intrigues me, however, is that these justices, all chosen through an identical selection process and appointed by two Democratic governors, have arrived at such a split decision. So clearly, this decision is not solely rooted in partisan allegiances but rather in the varied interpretations of the 14th Amendment.

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.

U.S. Const.  amend.  XIV,  § 3.

Following the Civil War, the 14th Amendment was crafted with a specific intent: to preclude individuals who had violated their oath—those who had pledged to defend and protect the Constitution but then sided with the Confederacy—from ever taking that same oath again. In Anderson vs. Griswold, the ruling states that Mr. Trump's ineligibility is anchored in his alleged neglect of his presidential oath of office, purportedly through inciting an insurrection at the Capitol.

However, this line of reasoning appears tenuous; irrespective of individual beliefs about the events of January 6th, it represents an overextension of the Amendment's intended provisions because the Amendment doesn't apply to Mr. Trump in any way.

Amendments frequently undergo multiple revisions to garner acceptance from all states. An earlier draft of the Amendment explicitly mentioned the president, but this was removed from the final version. This omission indisputably proves that the drafters did not intend to encompass presidents in their scope, instead directing their focus toward other "officers of the United States."

One cannot argue that the president is an officer of the United States because the Constitution, though sometimes vague, is particular about mentioning provisions that apply to the president and vice president. Mr. Trump is the only president to have never served as an officer of the United States, neither in any elected capacity nor through military service. So, given that he has sworn only one oath—the one exempted from this provision—it means that he has not broken his vow under the context of the Amendment.

Many conservative scholars have also raised awareness of Article II, which it states that the president "shall Commission all the Officers of the United States." All military officers serve at the pleasure of the president. However, the president doesn't commission himself — therefore, not rendering him liable to the Amendment, as he is not an officer of the United States.

Also worrisome is that the Colorado court ruled that Mr. Trump engaged in insurrection — a hazardous judicial activism case. Mr. Trump, to date, has neither been convicted nor charged with engaging in an insurrection. Jack Smith's indictment against Mr. Trump is not about insurrection but rather a conspiracy to defraud the United States, disenfranchise voters, and obstruct an official proceeding. Mr. Trump has already faced one trial for inciting an insurrection on January 6th in the United States Senate, where he was acquitted.

Yet somehow, the court took it upon itself to rule on two matters: that January 6th was an insurrection and that Mr. Trump engaged and orchestrated this insurrection. But whether January 6th was an insurrection is a political question to be left to the voters and not a group of unelected justices. If Mr. Trump had been charged and convicted of insurrection, he would have already been disqualified from holding public office, per federal law.

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

U.S. Const.  amend.  XIV,  § 5.

Congress is responsible for deciding these questions through legislative means, and since Mr. Trump has not been charged under the laws approved and drafted by the United States Congress, this means he is eligible to be president. Courts do not get to subvert the law of the land by arbitrarily imposing their will and preventing Mr. Trump from appearing on the ballot.

What happens now? The U.S. Supreme Court will undoubtedly reverse this decision, ideally in a 9-0 ruling. Should the court be split along its ideological lines, we will see Rachel Maddow and the rest of the talking-head liberals endlessly bemoaning that the "extremist MAGA Republican" Supreme Court has "bailed out" the former president. Because, whether by unanimity or through a split decision, the court will likely rule that since Mr. Trump has not been charged with insurrection and that courts cannot define these terms unilaterally, the decision must be reversed.

But this is another instance of "Pandora's box" or "crossing the Rubicon" — an ominous point of no return. Trust in the legal system, government, and our elected officials hasn't been this strained since the Civil War — and the unjust disqualification of a presidential candidate is the hallmark of banana republics, not the world's beacon of democracy and the shining city on a hill.

Many conservatives have already scoffed at the timing of the ruling, coinciding with recent polls showing Mr. Trump beating President Biden. They argue that since the Democrats know they cannot beat Mr. Trump next November, they will attempt to prevent the votes rather than winning them. This strategy, historically employed by South American dictators and contemporarily by Nicolas Maduro of Venezuela, involves disqualifying political opponents through the courts for ludicrous reasons.

I believe that Donald Trump is responsible for one of the greatest betrayals of an oath of office by any president. He attempted to discard the votes of millions of Americans to maintain power and exploited the genuine patriotism of millions by lying to them about claims of a stolen election. And, to quote Mitch McConnell, he is "practically and morally responsible for provoking the events of [January 6th]."

I look forward to casting my first-ever Republican presidential primary vote against him in my home state. However, this does not disqualify him from appearing on the ballot and does not impinge on the right of Americans to vote for or against him as they please. The only way to address Mr. Trump, in this context, is through rejection at the ballot box.

So many laws, precedents, conventional norms, and other procedures have been broken for the sake of "getting Trump," but none have had implications as frightening as this. No one, regardless of affiliation, should celebrate this concerning disenfranchisement of the electorate. The only way Mr. Trump can be stopped from appearing on the ballot is if he is defeated in the primary, giving us all a much more desirable general election outcome.

But that is a decision for Republican primary voters to decide upon, and trying to circumvent the will of the voters by preventing them from voting for their preferred candidate would be a more significant attack on American democracy than what occurred at the Capitol.

On a more cheery note, to all my readers who celebrate, Merry Christmas!