What are the constitutional issues?The justices face a seemingly intractable choice between two fundamental values: defending the rule of law and protecting democracy.For most of its life, the insurrection clause has been regarded by constitutional scholars as of historical interest only and consequently ignored.Trump’s appeal raised three major constitutional questions the Supreme Court will have to decide:*whether Section 3 applies to Trump as a sitting president*what it takes to determine if someone is guilty of insurrection*and whether the states have the power to enforce Section 3 without prior approval from Congress.On the first issue, Trump believes Section 3 doesn’t apply to him because it doesn’t specifically refer to the president or the presidential oath. He also claims the president is not an “officer of the United States”, as the clause reads.In his petition, Trump offers several unconvincing reasons why this is so and it will probably be a difficult argument for his lawyers to sustain. As the Colorado Supreme Court said pointedly in its judgement,The Constitution refers to the presidency as an “office” 25 times.The second issue is whether the Colorado court erred in grounding its judgement on the fact Trump had been guilty of insurrection (based on the House Select Committee report). One of the dissenting justices argued that Trump was entitled to the “due process of law” before being disqualified from the ballot.So far, Trump has not been found guilty of insurrection, nor is he facing any specific charges of insurrection in the court cases under way.The respondents seeking to remove Trump from the ballot point to the findings of the trial court in Colorado detailing his actions on January 6 as the central issue in the case. They claim Trump has failed to show why the trial court was wrong.In effect, then, they are asking the Supreme Court to validate the charge that Trump engaged in an insurrection.The third major issue is whether Section 3 is self-executing, as the Colorado Supreme Court decided. This means the Constitution does not require legislation by Congress in order to disqualify a candidate for office under Section 3.The US Supreme Court will have to decide whether Congress must legitimize any action under Section 3, or whether Congress merely has the power to invoke the insurrection ban should no other body do so.
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