The Colorado case that was decided in the high court in that state depends entirely on Section 3 of the 14th Amendment of the US Constitution, which 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."
Mitchell said that Trump was not appointed, and was elected, which means that he is not liable under this Section. He also said that "Section 3 cannot be used to exclude a presidential candidate from the ballot, even if that candidate is disqualified from serving as president under Section 3, because Congress can lift that disability after the candidate is elected, but before he takes office, a state cannot exclude any candidate for federal office from the ballot on account of Section 3.
"And any state that does so," he continued, "is violating the holding of term limits by altering the Constitution's qualifications for federal office. The Colorado Supreme Court's decision is no different from a state residency law that requires members of Congress to inhabit the state prior to election day when the Constitution requires only that members of Congress inhabit the state that they represent when elected. In both situations, a state is accelerating the deadline to meet a constitutionally imposed qualification and is thereby violating the holding of term limits. And in this situation, a ruling from this court that affirms the decision below would not only violate term limits, but take away the votes of potentially tens of millions of Americans."
Justice Clarence Thomas was interested in the role of the state in making the determination, and if the clause was "self-executing." Justice Sonia Sotomayor wanted to know if states could enforce the insurrection clause against their own officeholders, federal officials, or the president.
"Can states enforce the insurrection clause against their own officeholders? Or can they enforce it against federal officials? Or can they enforce it against the president?" She asked.
Mitchell referenced court precedent Griffin, a case in which per Mitchell said that "states had no role in enforcing Section 3, unless Congress was to give them that authority through a statute that they passed for some of your arguments." Justices focussed essentially on whether Section 3 is self-executing or if Congress must act by creating legislation.
After a brief discussion over the admissibility of the January 6 report, which was admitted in the Colorado Supreme Court case, Sotomayor suggested that Mitchell's argument over term limits may be in order to prevent states from disqualifying presidents from running for a third term. Mitchell said that was not at all the intention.
Justice Ketanji Jackson spoke to the question of whether Trump qualifies as an officer per Section 3. "Are you arguing both that the office of the presidency should not be considered one of the bard offices, and that the person, a person who previously took the presidential oath is not subject to disqualification?" She asked, noting that "president" is not on the list. Gorsuch dug into the difference, or lack there of, of "office" v. "officer."
Alito asked, "Is there any history of states using Section 3 as a way to bar federal officeholders?" Trump's attorney said that he did not think so.
"We believe the presidency is excluded from office under the United States. But the argument we have that he's excluded the President, as an officer of the United States is the stronger of the two textually and as highly were implications for our constitution," Mitchell told Sotomayor when asked about the crux of the case.
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