This will be one of the most important legal decisions in the history of American democracy. On Friday, the Supreme Court of the United States agreed to address the issue of Donald Trump's ineligibility, while Colorado held that the former American president was “unfit” to be included in the Republican primaries, because he took part in “an insurrection” during the attack on the Capitol.
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The court has scheduled the hearing for February 8 to hear arguments from both camps. A race against time is underway: Colorado's Republican primary must take place on March 5th. And the stakes are enormous: The Supreme Court's decision will determine not only whether Colorado is right, but also whether other states, like Maine, follow suit and declare Donald Trump ineligible under the 14th Amendment can explain. A point on which there is no consensus among constitutional law experts.
“I hope for fair treatment,” responded Donald Trump on Friday evening in Iowa.
Favorable terrain for Donald Trump
In Colorado, the panel that declared Donald Trump ineligible by a 4-3 vote included seven judges appointed by Democratic governors. On the United States Supreme Court, however, conservatives have a large 6-3 majority, with three justices appointed by Donald Trump (Gorsuch, Kavanaugh and Coney Barrett).
The 14th Amendment to the United States Constitution was passed in 1868 after the Civil War. It stipulates that a political, military or judicial official can no longer exercise such functions if he or she has “participated in an insurrection or rebellion.”
The Supreme Court will have to decide on three points in particular:
- Is the President of the United States, who is not specifically mentioned in the text, really an “Officer of the United States”? If we don't split hairs, anti-Trump conservative advocate George Conway believes this is indeed the position called the “Office of President of the United States.”
- Did Donald Trump “participate in an insurrection” with his speech before the attack on the Capitol? .”
- Is the 14th Amendment “self-executing”? The question is whether it can be invoked directly by a state or whether it requires a law or a vote of Congress to declare a person ineligible.
uncertainty
At this point, it is difficult to predict which path the Supreme Court will take. In crafting their decision, the Colorado justices emphasized an “originalist” vision of the Constitution that conservatives hold dear, and that the text must be interpreted in the context of the vision of the 19th-century Founding Fathers.
The panel's chairman, John Roberts, has sometimes voted with progressives, and in 2012 Neil Gorsuch (before he sat on the Supreme Court) ruled that a state could declare a candidate ineligible under certain circumstances. Enough to potentially pave the way for a slim 5-4 majority against Donald Trump.
“In my view, it is likely that the court will overturn the Colorado decision,” estimated attorney Brad Moss 20 minutes before the holiday. “Either interpreting that Section 3 of the 14th Amendment does not apply to the presidency or, as Michigan has done, concluding that it is a political question, not a legal one.” »
For the Supreme Court, this is likely just the beginning. The nine justices could also be asked to rule on the issue of Donald Trump's possible immunity until his first federal trial, which is scheduled to begin in early March.