In fact, Section 3 of the 14th Amendment is self-executing, which means that congressional action is not required. Nor is it required that the former president be convicted of the criminal offense of an insurrection or rebellion against the United States under Title 18 USC 2383.
The Constitution itself tells us that disqualification of the former president is not anti-democratic. Rather, the Constitution tells us that it is the conduct that can give rise to disqualification under the 14th Amendment that is anti-democratic.
This is not politics. This is the opposite of politics. This is constitutional law. And right now, the courts — the state courts and eventually the Supreme Court — will be interpreting the Constitution of the United States without regard to politics, let alone partisan politics.
I am confident that the Supreme Court would affirm Colorado Supreme Court’s decision based upon the objective law, which in this instance is Section 3 of the 14th amendment. Which is to say that I know that the Colorado Supreme Court decision is unassailable in every single respect under the Constitution of the United States. . . . I believe that this Supreme Court will affirm the Colorado Supreme Court if it takes this case for review.
Luttig's faith in the U.S. Supreme Court may be misguided, but the whole issue raised by the Colorado ruling should be enough for sane and moral Republicans seize upon to purge the stench of Trump from the GOP, A piece in The Atlantic by a conservative former Republican looks at the exit ramp that has been offered to the Republican Party:
“The experience of being disastrously wrong is salutary,” John Kenneth Galbraith wrote. “No economist should be denied it, and not many are.”
I’m not an economist. But I was wrong about the litigation to bar Donald Trump from the ballot as an insurrectionist. I wrote in August that the project was a “fantasy.” Now, by a 4–3 vote, the Colorado Supreme Court has converted fantasy into at least temporary reality.
The Fourteenth Amendment provides that anyone who swore an oath to support the Constitution of the United States, and who then “engaged in insurrection or rebellion against the same,” is forbidden to hold any federal or state office unless pardoned by a vote of two-thirds of both houses of Congress.
According to Colorado’s court, his actions leading up to the violent coup attempt of January 6, 2021, amounted to “engaging in” an insurrection. Therefore, the court ruled earlier today, Trump is disqualified from appearing on the Republican primary ballot in Colorado.
The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.
The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.
The Colorado Supreme Court harshly condemned Trump personally. It ruled him an insurrectionist, in effect a traitor. It joined his name to the roster of the Confederate rebels whom the authors of the Fourteenth Amendment wanted to ban from politics. And at the same time, that court offered emancipation from Trump to Trump’s party.
The polls seem to indicate that Americans’ preferences for 2024 stack up as follows: Trump will probably lose to Biden, but almost any other Republican would likely beat the current president.
Republicans who want to win in 2024 were just delivered a big favor, if they will accept it: a state supreme court ruling that their weakest general-election candidate is disqualified from running in the primaries where his too-loyal base is not emoting, not thinking.
If upheld by the Supreme Court, the Colorado court’s decision might yet save the GOP from itself. Will the GOP consent to be rescued?
Since Trump made his comments about wanting to be a dictator for a day, some Republicans have argued that there’s nothing to fear, because the institutions will stop him: The military won’t obey the illegal orders Trump has said he’ll issue; the Department of Justice won’t prosecute the authoritarian cases Trump says he wants to bring. For those Republicans: Here’s your chance. The Colorado court has just granted you what should be your fondest wish, a clear path to the Republican nomination for a post-Trump candidate.
Until now, Trump’s Republican rivals have shown themselves too scared to fight and too weak to win. The question ahead: Are they too scared and too weak even when the win is presented to them by the courts? The immediate reaction of many of them was, as usual, to cower and truckle—to take Trump’s side against their own. This is their last exit; if they drive past, there will not be another before the primaries finish.
The present Supreme Court is highly attuned to the wishes of conservative America. If the conservative majority senses permission from Republicans to save Republicans from themselves, they might do it. If they sense a veto from Republicans, they may not. What is said and done in the next days and hours may matter a great deal. If Republicans want rescue, they must stop pretending they object.
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