Horace Cooper in Washington on August 4, 2023. (Wei Wu/The Epoch Times)
Posted on 12/23/2023 8:20:57 PM PST by SeekAndFind
The U.S. Supreme Court is likely to strike down a Colorado court ruling that removed former President Donald Trump from the state’s ballot. However, the conservative majority on the highest court is likely to do so in a narrow way that doesn’t get into the weeds of whether President Trump's actions constituted insurrection, according to a constitutional law expert.
The Supreme Court may say the 14th Amendment’s disqualification clause doesn’t apply to the president, predicted Horace Cooper, senior fellow with the National Center for Public Policy Research, who formerly taught constitutional law at George Mason University.
The Colorado Supreme Court ruled on Dec. 19 that President Trump is to be barred from the state’s ballot because he “engaged in insurrection” by inciting his supporters to storm the U.S. Capitol on Jan. 6, 2021.
Because, under Colorado election law, only qualified candidates can be placed on the ballot, it would be “wrongful” for the secretary of state to allow on the ballot a candidate disqualified under Section 3 of the 14th Amendment, which bars from office anybody who has previously taken an oath of office and later engaged in an insurrection, according to the ruling.
Lawyers for the former president immediately announced that they intend to appeal the ruling to the U.S. Supreme Court.
“The Supreme Court is highly likely to take this case fairly quickly,” Mr. Cooper told The Epoch Times.
The Supreme Court doesn’t have to address the issue right away. It can put the state decision on hold and wait to issue a ruling until after the Colorado primary. But it’s unlikely that it would try to wait until after the next president is sworn in in 2025 and then declare the issue moot, he said.
“I don’t think they can get away with a 13-month delay,” Mr. Cooper said.
A major reason why the court is likely to step in quickly is because similar efforts are underway in other states, including New York, California, and Pennsylvania.
In Michigan, a district court struck President Trump's name from the ballot, but the ruling was reversed on appeal. The case appeared to be over, but after the Colorado decision, the Michigan attorney general filed an appeal to the state’s Supreme Court.
"[It’s] not a question that you can just stall your way out of,” Mr. Cooper said.
The U.S. Supreme Court will probably reverse the Colorado court but will likely look for a narrow way to do so, he predicted.
"There are some who want the court to weigh in on the question of insurrection. They want the court to weigh in on the issue of whether or not the actions that some ... or, maybe, many have observed of Donald Trump constituted insurrection—even if not charged and certainly not convicted,” Mr. Cooper said.
"The Supreme Court is highly unlikely to weigh in on that.”
Horace Cooper in Washington on August 4, 2023. (Wei Wu/The Epoch Times)
The 14th Amendment doesn’t specifically list the presidency among the offices to which the disqualification clause applies, but the Colorado court argued that the reference to “any office, civil or military, under the United States” covers the presidency and that the historical record indicated that the amendment wasn’t meant to exclude it.
However, Mr. Cooper predicted that the Supreme Court may take the opposite side of that argument, as it would allow it to dissolve the issue without getting into the weeds of what President Trump did or didn’t do.
“A more conservative court often tries to resolve a matter in the most straightforward way possible with the minimum need for a deep engagement on the part of the court. So I would say it is actually highly likely that they simply say, ‘As a matter of statutory construction, the office of the presidency was never contemplated for this,’” he said.
Mr. Cooper pointed out that the 14th Amendment was ratified in 1868 to exclude former Confederates from positions of power.
“Their target was specifically the Confederacy. Their target was not anyone who supported the French in the French-Indian War. Their target was not anyone who supported the British in the British-American War. Even though the language isn’t written in a way to limit those, the rationale was the Confederacy,” he said.
“The further away you get from a construction involving actual people who had engaged in military rebellion against the government, the more careful you’re going to have to be about your reading.”
The justices, particularly the conservative-leaning ones, will try to avoid passing judgment on the insurrection rhetoric applied against President Trump.
“The Supreme Court does not desire to own the question, ‘Does the behavior that people have seen of Donald Trump constitute insurrection?’ They do not wish to own that,” Mr. Cooper said, although he acknowledged that “there are some on the left who want that very question to be answered.”
Chief Justice John Roberts is particularly keen to keep the court away from political imbroglio, he said.
“If you look at a more conservative court, their typical response is always a more narrow construction. So here you’re going to have Chief Justice Roberts likely either writing the decision—which I predict—or deciding who will write the decision. In either case, his view is going to be that it be a simple and narrow way to overturn the case that Colorado has put forward,” Mr. Cooper said.
He speculated that even some of the justices in the left-leaning minority may join the decision, as it may allow them to keep the court less involved in the 2024 election.
Protesters at the U.S. Capitol in Washington, D.C., on Jan. 6, 2021. (Jose Luis Magana/AP Photo)
Mr. Cooper recalled the 2000 election, when the Supreme Court felt compelled to issue a stop order to halt recounts in Florida, only to be accused of interfering with the election.
“Many of the justices say that they are very unhappy with what happened to their reputation because they did that. If you ask them, would they like to do this again? Most of the justices, including the chief justice, will tell you 'no,'” he said.
In Mr. Cooper's view, simply declaring that the disqualification clause doesn’t apply to the president would allow Chief Justice Roberts to minimize election entanglement.
“He’s going to try to do it in the narrowest way possible so that it is not a determination where I’ve decided who can be a candidate and who cannot be a candidate. I’m only deciding whether or not Colorado understood the law,” he said.
It would've been prudent for the Colorado Supreme Court to try to stay out of the election, too, Mr. Cooper suggested.
The Supreme Court building in Washington on June 7, 2023. (Madalina Vasiliu/The Epoch Times)
“The Colorado Supreme Court really took a risk that it might get smacked down by the U.S. Supreme Court. And yet it did not, when evaluating that risk, try to act in a way that demonstrated restraint,” he said.
Mr. Cooper noted that the state court decision was split 4–3, with the chief justice dissenting.
The dissent showed the proper reticence toward election meddling, presenting a narrow argument that “nothing in Colorado law gives this power” to the secretary of state to strip candidates from the ballot based on the disqualification clause, he said.
The dissenters avoided the insurrection issue and settled on saying that “our statutes never were intended to give us this authority,” according to Mr. Cooper.
“That was the way out,” he said.
Have ALL of these “experts” forgotten about due process? They seem to be intellectually flaccid, incapable of standing up for the truth.
I heard a guest “expert” on a right wing talk show who said he thought the Supremes would “very quickly” cut off the Trump off the ballot attempts and “they probably have drafts with partially complete arguments to use in their decision” which could come within a week or so.
But it didn’t happen.
Of course it wasn’t insurrection, but there’s no need to even address that question. If their basis for reversing the Colorado decision is that Trump was not involved in an insurrection, they would still be leaving a can of worms half opened to be exploited down the road.
On a separate but related note, does presidential immunity extend to someone serving as President, who acquired his position through fraudulent means? Hopefully SCOTUS will address that issue in Trump 2.0, and hopefully they will rule in the correct way.
Either democrats or law and order. Pick one
You said, “Have ALL of these “experts” forgotten about due process?”
I’d say the answer is NO. Remember due process ONLY applies to Democrats.
Trump is guilty without a trial or conviction because he is a Republican. Even worse, Trump is guilty without a trial or conviction because he is Trump. Trump has been tried and convicted in the MINDS of the deranged and clinically insane Left.
Their form of due process is whatever they believe it to be at any given time in their demented insane world.
No need to dodge a single thing.
Deny the attempt to block him, and remind Colorado that they
are attempting to ding him for offenses unproven in a courtof law.
The 14th Amendment prohibition did not require ‘due process’ to prohibit ex-Confederate office-holders and military officers who had previously sworn an oath to the Constitution from holding public office. Few, if any, were charged with any crime, let alone found guilty of any crime. Their Confederate service was public knowledge. And few would deny that the Civil War was an insurrection.
The problems are, did the events of January 6 constitute an ‘insurrection’ ? Seems to me to be a pretty big stretch. It lasted hours at most and resulted in one death, an unarmed ‘insurrectionist’, and caused what, thousands of dollars in damage to the Capitol. less than the bomb that went off in the Senate.
And then there is President Trump’s role in the so-called insurrection. How can a sitting President lead an insurrection against his own government? Did he lead people into the Capitol? Did he encourage violence?
What role did the Speaker of the House play in the ‘insurrection’? If trouble was suspected, why did the Capitol police escort people into the Capitol?
It would be nice if SCOTUS declared the charge of insurrection is absurd on its face.
I would have to say that they have been trying to deny rights
to people they think of as terrorists. That’s us.
They don’t think we get full rights any longer.
We need to rethink some things we allowed to become law.
Their insurrection mem is decaying on the vine.
Good job to Epoch.
We could use our side challenging SCOTUS to put a fork in it already.
Actually two deaths and both were unarmed women.
I predict the supreme Court will not hear the case and 20 states will ban Trump. A painless assassination. GOP will drop him for a Deep State approved fellow—Chris Christie? Mitt Romney, or Nickie Hallie. (She’s a woman you know and of color) Biden will drop out and Newsom will be place in the chair—to smile—talk big and do as Obama tells him. Trump is done—by hook or by crook they will end him only honoring him when he is dead. (Like Reagan).
You don’t suppose Iranians have crossed the border to avenge Assam Soleimani with a drone or two?
The Supreme Court can’t rule on the one without the other.
As for insurrection, the 14th amendment does not apply to the president, it carefully limits him out. Roberts has already ruled that the president is not an officer of the government.
“It would be nice if SCOTUS declared the charge of insurrection is absurd on its face.”
Why are they hair-spitting on whether Section 3 includes the President and VP? I think section 5 is plain. Congress reserves to itself the enforcement of the amendment, not state courts or legislature.
When the French had their "insurrection", it wasn't lead by grandmothers with iPhones on selfie sticks.
The peasants were carrying sticks (pikes) alright, but they didn't have iPhones mounted on them. They mounted the heads of their "elites" on them. I think that our "elites" understand that - and it terrifies them.
(Explaining the extreme overreaction to the events of January 6th, the efforts at censorship, the efforts at gun control...)
For all we know, some or all of the justices are under house arrest.
SCOTUS is now just a rubber stamp for Deep State.
Such crapweaseling ascribe to the SC.
To rule that the 14th amendment clause doesn’t apply to a president will not gain SCOTUS any brownie points. They’ll still be accused by the left of interfering with elections.
I don’t think so. The Immunity issue is out there on a dozen other cases. Supes would be foolish and would make a LOT more work for themselves to ignore this.
And this court DOES NOT like to work. They take a paltry load of cases-—could easily do 2-3 times as many cases.
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