The improbable journey of the third section of the fourteenth amendment of the US Constitution ended this Monday in Washington, where the Supreme Court unanimously decided that Donald Trump has the right to appear on the Colorado primary ballots, scheduled for March 5 . Colorado is one of the 15 states that go to the polls on Super Tuesday, whose voters will now be able to vote for the former president, a more than likely Republican candidate for the White House. The ruling also means that he has the right to participate in the rest of the primaries of the States of the Union, as well as the general elections in November.
“Because the Constitution makes Congress, and not the States, responsible for enforcing the third section of the Fourteenth Amendment against federal officeholders and candidates, the Colorado Supreme Court erred in ordering former President Trump to be excluded from the 2024 presidential primary ballot,” says the text of the high court, which considers that a decision of this magnitude can only be adopted from a federal instance and with federal scope. The obligation that it also has to be through the approval of a law in Congress translates in practice into a shield for Trump: the Republicans have a majority in the House of Representatives and in the Senate a qualified yes of 60 seats is needed, almost impossible to put together in the current American political climate.
The decision – 20 pages long and with two dissenting votes that agree with the general tenor, but criticize the argument – does not consider whether Trump’s actions fit the definition of an insurrection. This is the most important electoral ruling in the history of the United States since Bush contra Gore, that settled the dispute over the recount of votes in Florida in the 2000 elections and ended up giving the presidency to George Bush Jr.
Trump celebrated the ruling in a message in capital letters on his social network, Truth: “A GREAT VICTORY FOR THE UNITED STATES!!!” After noon, he appeared from his Mar-a-Lago residence, in Palm Beach (Florida), to say that he believes that the decision “will contribute greatly to uniting the country, something necessary.” He also took the opportunity to deploy his usual victimist and xenophobic discourse, full of inaccuracies and lies about issues such as migrants arriving in the United States (“many, many of them are terrorists,” he assured). From the Supreme Court, which has yet to decide whether he has total immunity, as his lawyers claim, for the acts of his presidency, he highlighted that he has acted “so quickly and so brilliantly” by making it clear that those who want to go after him “will have to do it at the polls.”
The Supreme Court of Denver had ruled in December that the so-called “disqualification clause” of the fundamental text could be applied to the former president, due to the acts, described as “insurrection” by a lower court judge, that Trump carried out in the weeks before and during on January 6, 2021, the day in which a mob of his followers stormed the Capitol after a rally in Washington in which the magnate harangued them to march towards the headquarters of the US Congress, where congressmen and senators were meeting that day to certify Joe Biden’s electoral victory in the previous November elections. The Republican candidate refused to accept that result and still (along with a third of the electorate) does not consider it valid.
Colorado, where the lawsuit was filed by a group of voters, four Republicans and two independents, was later joined by the State of Maine, and, last week and by surprise, a judge from Illinois, who ruled that Trump could not attend the elections. primaries next March 19. Both decisions were, however, on hold pending the sentencing this Monday in Washington. In practice, all of these attempts are rejected along with the one in Colorado. In these months, more than thirty similar lawsuits had been filed throughout the country.
The nine justices of the Supreme Court (three liberals and six conservatives, three of whom were appointed by Trump while he was in the White House), heard the arguments of both parties on February 8 and already seemed determined to agree with the lawyers of the former president. So they avoided going into assessing whether the acts at the end of Trump’s presidency could be classified as typical of an insurrection. In this Monday’s ruling, the issue is not debated either.
The entire discussion revolved around the interpretation of a couple of phrases of the Constitution – 95 words in total – very rarely used, on which the Supreme Court had never ruled. This is the third section of the fourteenth amendment, an addendum to the fundamental text approved in 1868, three years after the end of the Civil War (1861-1865). It served to grant full rights to enslaved people and to place a containment dam that would prevent the Confederate rebels from being able to hold public office again and dynamite the system from within.
Cross arguments
The text has two parts. The first says: “Whoever, having previously sworn to support the Constitution of The United States as a member of Congress, as an official of the United States or as a member of the Legislative Assembly of any State or as an executive or judicial official thereof has taken part in any insurrection or rebellion against the United States or has provided aid or facilities to the enemies from the country”. The second continues: “However, Congress, through the vote of two-thirds of each Chamber, may remedy this inability.”
In that oral hearing, doubts were raised about whether this text explicitly refers to the position of president, and whether it is a provision that applies automatically or whether Congress has to put it into operation. Trump’s lawyers argue that the speech to his supporters on January 6 is protected by free speech. The accused maintains that his disqualification would have amounted to an act of political persecution.
In her concurring opinion, conservative Amy Coney Barrett recalls that “the court is resolving a politically charged issue in the volatile season of a presidential election,” and expresses a desire for harmony in a country at odds: “Especially under these circumstances, our rulings “They should lower the national temperature, not raise it.” The other concurring opinion is signed by the three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown-Jackson. In it, they object that the ruling, with which they agree in general terms, goes too far, saying that only Congress can apply the third section: “We cannot join an opinion that decides transcendental and difficult issues unnecessarily and, Therefore, we only agree on the ruling.”
It is the second time in less than a week that the Supreme Court has given the former president a boost in his plans to return to the White House four years later. Last Wednesday, the court decided that it would answer the question of whether Trump was granted presidential immunity when he tried to reverse the electoral result of the 2020 elections, which implies a new postponement in the start of the trial against him. magnate in Washington for the events that led to the assault on the Capitol. The hearing to hear the oral arguments of both parties has been set for April 22. It is foreseeable that weeks will pass until the nine magistrates issue their resolution, perhaps in June, at the end of the judicial course. Only then, and only if they do not agree with Trump and if they deny his immunity, can the start date of the electoral interference trial be set. That could lead to a delay until September or October.
The legal theory of disqualification began to take shape last August with the dissemination prior to publication of a 126-page scientific article for the legal review of the University of Pennsylvania. Graduated The extension and strength of the third section, It was signed by William Baude and Michael Stokes Paulsen, two renowned conservative academics, who argue that the disqualification clause affects the president and that there is no doubt that Trump’s actions fit his description.
This Monday, the Supreme Court ruled against them, thus putting an end to the journey of a legal theory in which Trump’s detractors had placed their faith to cut off his path back to the White House.
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