AILSA CHANG, HOST:
For the first time, a presidential candidate has been disqualified from being on a state's ballot under Section 3 of the 14th Amendment. The Colorado Supreme Court handed down the landmark decision last night, ruling that former President Trump cannot be on the Republican primary ballot because he engaged in insurrection. Now, the Trump campaign says it will appeal the decision. And joining us now to talk about all of this is Jeffrey Rosen. He's a professor at George Washington Law School and the president and CEO of the National Constitution Center. Welcome.
JEFFREY ROSEN: Good to be here.
CHANG: So just very briefly, Jeffrey, can you just explain the Colorado Supreme Court's ruling for us here?
ROSEN: An extraordinarily important decision, of course. And the majority of the Colorado Supreme Court held that President Trump is indeed disqualified for running for president under Section 3 of the 14th Amendment. The trial court had held that he did indeed engage in insurrection, which the 14th Amendment prohibits, and would ordinarily be disqualified, but the trial court held that the president wasn't covered by the 14th Amendment. And the Colorado Supreme Court majority disagreed with that holding, said the president is covered, he did engage in insurrection, and then crucially held that the amendment can be enforced on its own - that Congress doesn't have to pass a law saying that a particular group of people engaged in insurrection before the law can be enforced.
CHANG: OK.
ROSEN: There was vigorous dissent, and of course, that's going to be front and center before the U.S. Supreme Court. And the dissenters basically said...
CHANG: That's what I was going to ask you. So you think it is quite likely that the U.S. Supreme Court will take up this case?
ROSEN: Yes, indeed. It has huge implications for the country. There are challenges pending in other states. And Bush v. Gore was the last kind of central challenge to the integrity of the election. And the court intervened there and will intervene here as well.
CHANG: Well, let's talk about that, because there has been a lot of conversation just, you know, in the last less than 24 hours, a lot of people comparing Bush v. Gore to this case. And obviously, that was a Supreme Court case that decided the outcome of the 2000 election. How useful do you think it is to compare Bush v. Gore to this Colorado case, should the Supreme Court take it up?
ROSEN: It's extremely useful. And it's very striking that in Bush v. Gore, the court explicitly rejected the argument that who won the election is a political question that should be decided ultimately by Congress and not by the courts and stopped the recount. Here, if the U.S. Supreme Court reverses the Colorado court, it'll reach the opposite conclusion. It will hold that this is a political question and that Congress has to decide it, which is precisely the move that it didn't make in Bush v. Gore. So regardless of how you think this court should be decided, the U.S. Supreme Court would be acting dramatically differently in this election than it did in 2000.
CHANG: And another thing that has surfaced in conversation since last night - it's been noted that three of the justices on this Supreme Court were, of course, appointed by former President Trump. How much do you think that should or will matter to their ruling on this Colorado case, again, should the U.S. Supreme Court take this case up?
ROSEN: Well, the U.S. Supreme Court in Bush v. Gore was very suspicious of the fact that the Florida Supreme Court was a group of Democrats who they seem to think we're trying to steal the election. And Justice Stevens, in his dissent, criticized the court majority for being so suspicious of the integrity of the lower court judges. In practice, that may be at play here again. But the court will also be sensitive about the tremendous hit that it took in Bush v. Gore and basically will try to avoid that determination entirely.
What makes this even tougher - and it's a very complicated case with a lot of moving parts - is that the only relevant Supreme Court precedent in this case, decided by Chief Justice Chase during the Civil War, did hold that Congress had to act before the disqualification provision should be enforced. So the majority, if it's inclined to act here, may rely on that case and try to keep the U.S. Supreme Court out of it.
CHANG: You noticed that there's very - you noted that there's very legal precedent currently on this particular provision of the 14th Amendment. Just, you know, as a constitutional law scholar, what do you make of the legal strategy here of using a sort of forgotten provision in the U.S. Constitution as a tool to potentially reshape this presidential election?
ROSEN: Well, it's remarkable. You know, words like unprecedented and historic are true here because it is, indeed, a fact. I mean, the truth is that ever since Bush v. Gore, which was itself an unprecedented argument which had never been tried before, the U.S. Supreme Court has been at the heart of elections and presidential elections, too.
CHANG: Right.
ROSEN: And we just saw last term the court refusing to allow state legislatures to change the result of elections after they take place...
CHANG: And we will have to leave it there. Thank you so much. That is Jeffrey Rosen of the National Constitution Center.
ROSEN: Thank you. Transcript provided by NPR, Copyright NPR.
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