The following are notes and comments about Section 3 of the Fourteenth Amendment which is the authority on which the Colorado courts focused when deciding former President Trump’s name should be removed from the ballots in Colorado. The allegation is that Trump is not eligible to hold office because he allegedly engaged in an insurrection against the United State Government on Jan. 6, 2021. The fact that Trump was President of the United States at that time raises the issue of how he could be engaged in Insurrection. when he was the Chief Executive Officer of the military and in charge of the Executive Department’s law enforcement agencies. Nevertheless, the Colorado courts held a five-day trial and argued that Trump received more due process than he used, needed or requested.
Due Process in the Colorado Courts. Nobody apparently argued that Trump was not allowed to present evidence or was denied opportunity to defend his case in the Colorado courts. The U.S. Supreme Court heard oral arguments from Trump’s lawyers and the State of Colorado last week and could announce its ruling at any time. Much of what follows is based on the writings of Law Professor Josh Blackman published at a link provided below.
Is Section 3 Self-Executing? One huge question before SCOTUS is whether Section 3 is self-executing. For a defendant or other litigant to seek affirmative relief in a Collateral Proceeding (the Griffin case discussed below), Congress must provide a cause of action. But Section 3 can be used as a shield in a trial court, or on direct appeal. For various reasons, Trump’s attorney was very tentative in answering questions that various Justices asked him regarding this issue. The issues herein seemed to serve Trump very well at the trial level of the Colorado courts and several Justices seemed to be open to ruling that Section 3 is NOT self-executing.
See Josh Blackman at Volokh Conspiracy.
