The Colorado court is the first to bar Trump from the 2024 election ballot. But it made a grave error
John Yoo: SCOTUS will likely 'overturn' Colo. Supreme Court decision on Trump
UC Berkeley law professor John Yoo discusses the growing legal battles surrounding former President Trump's candidacy on 'Your World.'
The Colorado Supreme Court issued a blockbuster decision on Tuesday blocking former President Donald Trump from the 2024 election ballot. It held that the U.S. Constitution’s 14th Amendment, which barred Confederate rebels from ever holding federal office again, applied to Trump because he had attempted to block the peaceful transfer of power on January 6, 2021. The U.S. Supreme Court should reverse Colorado’s mistake, which would draw the courts even deeper into supervising our presidential elections, and allow the voters to decide for themselves Trump’s responsibility for the attack on the Capitol that day.
Colorado’s Supreme Court is the first court to bar Trump from the ballot on the theory that the former president falls within the 14th Amendment’s ban on insurrectionists from holding office again. The Colorado Court, however, erred by finding that the constitutional provision applies to a former president as someone who allegedly participated in a rebellion. It also mistakenly held that the 14th Amendment prohibits any former rebels from running for president. The Justices of the U.S. Supreme Court can follow the clear text, structure, and history of the U.S. Constitution, and find Trump eligible to be elected president.
Article II of the Constitution lists only three qualifications for the presidency. A president must be "a natural born Citizen," he or she must be at least 35 years old, and he or she must have been a resident of the United States for 14 years. After the Civil War, Congress proposed, and three-quarters of the states, ratified Section 3 of the Fourteenth Amendment to exclude those who had participated in the rebellion from federal office. It is important to read the text of that provision carefully:
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.
COLORADO SUPREME COURT DISQUALIFIES TRUMP FROM 2024 BALLOT
By adopting this provision, the victorious Union obviously wanted to prevent former Confederates from returning to Congress, the executive branch, or the military (once the war had ended, some of the Southern states had elected former Confederate leaders to Congress).
The Colorado Supreme Court has clearly erred, however, in finding that this clause applied to former presidents. Section 3 lists that disqualification from future office will apply to anyone who had engaged in insurrection or rebellion against the United States who had been: a) "a member of Congress"; b) "an officer of the United States"; or c) a state official. The constitutional text, as interpreted by the Supreme Court, carefully distinguishes between "an officer of the United States" – which covers cabinet officers and those below them – and the president of the United States.
The examples where the Constitution distinguishes between the president and an "Officer of the United States" are legion. You need look only at the text of Section 3 itself. It bars insurrectionists from serving as "elector of President and Vice-President."
If the 14th Amendment’s Framers had wanted to bar past presidents, who join an insurrection, from ever holding federal office again, they could have easily included "President" in the very same sentence. Or consider the Appointments Clause in Article II, Section 2 of the Constitution, which states that the President may nominate, and with the advice and consent of the Senate, may appoint "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Under this Clause, the president himself is distinguished from "Officers of the United States." Article II, which establishes the executive branch, specifies that the President is "elected," not appointed, and gives the president the responsibility to "Commission all the Officers of the United States."
This makes perfect sense. The Constitution ensures democratic choice of our highest leaders – the president and Congress – through election; these then appoint the lower-ranking "Officers of the United States" through nomination by the President and confirmation of the Senate.
These same arguments show that the Constitution would not prohibit someone who committed insurrection and rebellion from election to the presidency in the future. Section 3 bars rebels from becoming: a) "Senator or Representative in Congress"; b) and "elector of President and Vice-President"; or c) "any office, civil or military, under the United States."
Put aside whether Trump’s alleged involvement with the January 6 attacks or attempt to coerce Vice President Mike Pence to reject valid electoral votes amounted to an insurrection or rebellion. Either way, Trump could still run for the presidency; Section 3 only prohibits him from being a Member of Congress, and Elector, or a cabinet or military officer.
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Even the Constitution’s provisions for impeachment and removal of executive branch officers draws a line between presidents and "officers of the United States." Article II expressly provides that "[t]he President, Vice President and all civil Officers of the United States, shall be removed" upon impeachment and Senate conviction.
If the Colorado Supreme Court were correct, the Impeachment Clause contains an obvious redundancy: it should have just said that all Officers of the United States could be impeached and removed, and not repeated "the President and Vice President." But as the great Chief Justice John Marshall warned long ago in McCullough v. Maryland, we are not read any constitutional language as mere surplusage; we must give meaning to every word and clause.
The Constitution even requires that "officers of the United States" and the president take different oaths of office: it is the latter alone who must specifically swear "to the best of my Ability, preserve, protect and defend the Constitution of the United States," while the former must swear only "to support this Constitution."
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When the constitutional text is this clear, there is no need for courts to delve into the history of the drafting or ratification of the text. But the constitutional structure confirms the text. Even if the United States were to face future presidents who might commit future insurrections, the Founders had already provided a mechanism that provides for their disqualification.
The Constitution also leaves to Congress the duty to execute the Fourteenth Amendment, presumably by passing a law specifying who is subject to disqualification – which, as Chief Justice Salmon Chase observed immediately after its ratification, Congress has not done.
This is no apology for Trump’s spreading of baseless claims of electoral fraud or his efforts to stop the electoral count on January 6. But as with the weak charges brought by the special counsel, the effort to hold Trump accountable for his action should not depend on a warping of our constitutional system.
Prosecutors should charge him with insurrection if they can prove it. Congress should disqualify Trump if it can agree that he committed the crime.
The Supreme Court can step in to ensure that the American people will decide Trump’s responsibility for the events of January 6 at the ballot box in 2024’s nominating and general elections for president.
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John Yoo, co-author of The Politically Incorrect Guide to the Supreme Court, is a law professor at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution.
