The Supreme Court expressed doubt over Colorado’s authority to exclude former President Donald Trump from the Republican primary ballot based on the 14th Amendment, which prohibits individuals who have “engaged in insurrection” from holding office.
Justices, particularly Neil Gorsuch and Brett Kavanaugh, raised concerns about the constitutional nuances and the potential for states to overstep boundaries in determining candidate eligibility.
“How does that work, given that section 3 speaks about holding office, not who may run for office?” Gorsuch asked.
“Could they do it without section 3? Could they disqualify somebody for, you know, on whatever basis they wanted outside of the qualifications clause?” he asked.
“I just wanted to give you a chance to respond to it because it seems to me that you’re asking to enforce in an election context a provision of the Constitution that speaks to holding office,” Gorsuch said.
They also highlighted the absence of charges against Trump related to insurrection and the practical implications of disqualification on lower officials’ obedience to a disqualified president.
“President Trump has not been charged with [insurrection],” Kavanaugh said. “Some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office.”
“But obviously Congress has enacted statutes, including one still in effect, section 2383 of title 18, prohibits insurrection. It’s a federal criminal statute and if you’re convicted of that you are, it says, shall be disqualified from holding any office,” he said.
The hearing addressed significant legal questions related to Section 3 of the 14th Amendment and the application of the law in this context.