When the Supreme Court reviews Colorado’s decision to exclude President Trump from the state’s ballot, it will be delving into wholly uncharted territory.
The Supreme Court has never interpreted the constitutional provision prohibiting former office-holding insurrectionists from holding future office. Several leading constitutional scholars argue that, in part for this reason, the constitutional ban cannot be enforced without prior congressional enactment of guiding directives. The high court may consider this option to provide a welcome off-ramp.
But the position that the constitutional ban on insurrectionist office holders is not activated absent congressional legislation is not only incorrect, it also threatens the very foundations of America’s constitutional system.
Kinda… It is clear that an insurrectionist can’t hold office. But what defines an insurrectionist? Is it a matter of inflammatory speech? Or is it a conviction of insurrection as a crime? Somewhere in the middle? That is where I think they will be hung up - and err on the side of conviction or due process being required to label someone an insurrectionist.
Again, I want to say I am not in agreement with this likely approach. I just think this is how it will play out.