If you’re confused, then here’s a primer on how the Insurrection Clause works. If you want to dive deeper, then listen to this Lawyer2Lawyer podcast that covers the law and the facts.
First, let’s dispense with the basics. Here’s the actual language. If you read section 3 closely, then you’ll see that the Insurrection Clause in section 3 of the 14th Amendment to the Bill of Rights does not require a criminal conviction to prevent a person from holding office. There is no such language in the clause. Rather, it requires that the person simply “engage in [an] insurrection or rebellion.”
It also requires the person to be an “officer” who has taken an oath to “support the Constitution of the United States,” which obviously would be violated by engaging in an insurrection or rebellion against the United States. There is a very good article from the New York University Journal of Law and Liberty that argues against the conclusion that the President is an officer of the United States.
But, when you look at the language the Constitution itself dictates for the Presidential Oath, you can be the judge whether the President is an “officer:”
"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Article II, Section 1, Clause 8. If it’s an “office” that the President holds, then it seems likely the President is an “officer” of the United States, according to the Constitution.
Unfortunately, however, section 3 is shy about a whole lot of other things.
Other grounds
The Colorado Supreme Court’s decision to disqualify Donald J. Trump from its electoral ballot was met with a dissent by its Chief Justice on the grounds that the foundational Colorado state statute is not broad enough to allow the challenge to be brought in the first place. Every wrong has a remedy, so a dissent without a solution is of no help.
Another Colorado Justice dissented on the grounds that the Insurrection Clause is not “self-executing,” which means that it takes another step to become effective. That Justice argued that section 5 of the 14th Amendment vests power in Congress to enforce its provisions by legislation. Since there’s no legislation regarding section 3, then it is not self-executing.
On the other hand, the Supreme Court itself limited Congress’ powers to just two aspects of section 1 in the 14th Amendment:
"[Congress ...] does not have the power to create new rights or expand existing rights, but rather only [...] the authority to prevent or remedy violations of rights already recognized by the courts. Moreover, the remedies provided by federal statutes must be 'proportionate' and 'congruent' to the scope of proven constitutional violations."
Chemerinsky and Maltz.
Generally, however, the Supreme Court opinions that led to the requirement of “proven constitutional violations” focused only on section 1, the due process clause, not sections 2 - 4, so the “self-executing” aspect of the dissent is a red herring. While Congress “shall have” the power to enforce the Amendment, the Supreme Court has had no issue enforcing it, either, despite the apparent lack of Constitutional authority in this section to do so.
Moving past the self-executing issue leaves us with identifying the proper authority to enforce who appears on what ballot. Since the states, not the federal government, are in charge of the elections, then the state supreme courts are the appropriate battleground for that list of persons who appear as candidates for office (there’s that word again).
Trump flouts two main defenses to disqualification in the Colorado case, which factually found that Trump did engage in the insurrection and based on the tapes there's little doubt of that finding. Trump claims his right to First Amendment free speech and Presidential immunity preclude that finding.
The immunity issue will be solved soon in Trump's criminal case over January 6, but again it appears clear that wanting to be President again is a private citizen desire, not within Presidential duties. Free speech does not allow you to yell "fire" in a crowded theater, and it seems that Trump's speech on the Ellipse rose to that level with a crowd in tow. But you be the judge.
Trump’s campaign says he will appeal (whether you donate is up to you), but the US Supreme Court does not have to accept his case. They can choose to either let the Colorado ruling stand or accept the appeal, but since Trump already appealed once to the Colorado Supreme Court from its lower district court, he’s out of mandatory appeals like a football team out of time outs at the goal line in the fourth quarter.
But, if another state’s decision to allow Trump on their ballot is also appealed, then we will have a showdown at the US Supreme Court.
Stay tuned! We’re far from out of the woods.
