Why kicking Trump off the presidential ballot won’t be easy

WASHINGTON — The argument that the 14th Amendment to the Constitution bars Donald Trump from the ballot has rapidly gone from obscurity to the top of the political agenda.

In August, when I wrote about why the 14th Amendment needed to be taken seriously and how it had the potential to upend the 2024 presidential campaign, a lot of people doubted the issue would get traction.

Now, it’s about to land at the U.S. Supreme Court. Within the next couple of weeks, the justices almost certainly will announce that they’ll review the Colorado Supreme Court ruling barring Trump from the state’s primary ballot.

But getting to the Supreme Court may prove to be the easy part. To win the case, Trump’s opponents have to surmount some big hurdles. Perhaps the toughest stems from Congress’ failure to take action in response to the Jan. 6, 2021, attack on the Capitol.

The 4-3 ruling by Colorado’s highest court held that Trump’s role in the Jan. 6 attack amounted to “engag(ing) in an insurrection.” Under the 14th Amendment, that means Trump is barred from holding any federal office, including the presidency, the Colorado court ruled.

The 14th Amendment was added to the Constitution after the Civil War. Section 3 of the amendment says this:

“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.”

The gist is clear. The details, however, are thorny. Among the questions:

Who is an “officer of the United States”? Is the presidency covered?

What does the text mean by “insurrection or rebellion”? Does the Jan. 6 attack on the Capitol qualify?

Who gets to rule on whether someone has engaged in an insurrection? Can that be decided without a trial?

The Colorado court ruling affects only Colorado. Logically, however, if the Constitution bans Trump from office, the ban is effective in all states. Either he’s eligible or he isn’t. That’s why the U.S. Supreme Court almost certainly will take up the case — it’s the only body that can ensure uniformity of the law across the country.

Of the nine justices on the high court, six are Republicans. But partisanship may not save Trump; the justices have already shown their willingness to rebuff him.