When the Supreme Court reviews Colorado’s decision to exclude President Trump from the state’s ballot, it will be delving into wholly uncharted territory.
The Supreme Court has never interpreted the constitutional provision prohibiting former office-holding insurrectionists from holding future office. Several leading constitutional scholars argue that, in part for this reason, the constitutional ban cannot be enforced without prior congressional enactment of guiding directives. The high court may consider this option to provide a welcome off-ramp.
But the position that the constitutional ban on insurrectionist office holders is not activated absent congressional legislation is not only incorrect, it also threatens the very foundations of America’s constitutional system.
14A S3 clearly describes disqualification as a “disability,” one which can be removed by a two-thirds vote of each house of Congress. SCOTUS can avoid looking absolutely foolish by upholding the Colorado ruling, while pointing to Congress as the body ultimately responsible for removing that disability, if they so choose.