On December 19, 2023, the Colorado Supreme Court disqualified former President Donald J. Trump from the state’s presidential primary ballot. Similar cases are currently pending in several state courts, including but not limited to California, Massachusetts, and New York. This means that Trump will not be eligible to be a candidate to become the United States President in the Colorado Republican primary. The Supreme Court subsequently took up Trump’s appeal to be allowed on the ballot on January 5, 2024. The current supreme court, with its 6-3 conservative majority, will face one of its biggest political challenges in its already tumultuous term.

The constitutional case for disqualifying Trump relies on the Fourteenth Amendment to the US Constitution. Section 3 of the amendment states, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” Trump, who has held the office of the Presidency of the United States, qualifies as having held an “office, civil or military, under the United States.” According to the proponents of disqualification, his attempt to stay in office by encouraging the Capitol attack on Jan. 6, 2021, qualifies as engaging in an “insurrection or rebellion against the Constitution.” This clause was originally designed to prevent former Confederate officials from being elected into public office after the Civil War. Even though Congress can remove this restriction on specific individuals if they think doing so would be beneficial for the general welfare of the public “by a vote of two-thirds of each House,” it is practically impossible in our current political environment.

However, this theory for disqualification has also faced significant pushback. The challenge to disqualify Trump is two-fold. The first is constitutional. Some commentators argue whether Trump’s action should be considered engaging in an insurrection in this specific legal context. The Civil War, which led to the destruction of hundreds of thousands of lives, is qualitatively distinct from the five-hour riot on January 6. Since it is crucial in such an important constitutional matter to apply the Fourteenth Amendment’s insurrection clause very judiciously and prudently, one could argue that the legal interpretation of the word “insurrection” should not be stretched too far.

The other side of the argument is political. Disqualifying a frontrunner of a presidential candidate of a major party is, at face value, undemocratic. Instead of letting the voters decide who they want to vote for, the judicial system is largely deciding the result of the election by itself if it chooses to disqualify Trump. It could be argued that in a liberal democracy, certain undemocratic standards need to apply so that the system can function and that the basic rights of people can be protected. However, such extreme measures should only be taken if absolutely necessary. In the end, disqualifying Trump legally from running may cause voters to distrust the legal and political system even more, causing devastating effects in the long term.

Plainly said, there is very strong reasoning on both sides of the argument. Prominent legal scholars across the political spectrum have different views on this issue, and it is impossible to resolve everything in this article. In fact, the first two legal scholars who proposed Trump’s disqualification were prominent conservative legal scholars. No matter the final decision of the Supreme Court, it will for sure be a consequential, and contentious one.