Editor's Note: This is a complimentary research note published by Hedgeye's Macro Policy Team of JT Taylor and Paul Glenchur. Click here to get more analysis on the current political state of the US. Make sure to tune in to The Policy Show to get the full rundown on the economic implications of this event.
Last night, the Colorado Supreme Court, on a 4-3 vote, ruled that former President Donald Trump is ineligible to again serve as president because he engaged in insurrection against the Constitution, conduct that triggered the disqualification provisions of Section 3 of the Fourteenth Amendment.
The case will be appealed to the U.S. Supreme Court and likely be put on a fast track with the delegate-selection process set to begin in a few weeks. The Iowa Caucus takes place on January 15. The New Hampshire Primary is on January 23. Colorado's primary is on March 5 (Super Tuesday).
Although last night's court ruling sent a shock wave through the mainstream media world of political punditry, we were not so surprised. As we've discussed on several occasions, the Fourteenth Amendment risk to the Trump candidacy was plausible and vastly underappreciated, particularly as the case headed into the Colorado Supreme Court (Hedgeye Potomac, Colorado Court Ruling is Mixed Bag for Trump, Nov. 17, 2023) (click here).
We have outlined the basic constitutional issues in previous notes, explaining that "the case to disqualify Trump from Presidential eligibility is not frivolous and could grab the spotlight in a few weeks." (Hedgeye Potomac, The Underappreciated Threat to Trump's GOP Nomination, Oct. 13, 2023) (click here). Under Section 3 of the Fourteenth Amendment, an "officer of the United States" cannot hold future office if he engaged in insurrection against the Constitution. In last night's ruling, the Colorado Supreme Court majority held that the case against Trump could be adjudicated under state election law and then, after analyzing the component Fourteenth Amendment issues, concluded that Donald Trump is disqualified from again serving as president. The insurrection finding is rooted in the January 6 riot at the Capitol and the efforts to derail the constitutionally-prescribed election certification of Joe Biden by Vice President Mike Pence.
The decision, of course, has massive implications for the 2024 election outlook. Political talking points will dismiss the decision as a left-wing effort to attack Donald Trump, deprive voters of their right to support their chosen candidate and bolster the incumbent hopes of President Biden. The reactions are predictable and understandable. But the legal issues in this case are not so simple and legal experts -- liberal and conservative, Democrats and Republicans, well-credentialed -- land on both sides of disqualification issue.
Critics of last night's Colorado court ruling emphasize an important and practical point. Theoretically, different states can reach different decisions about Trump's disqualification under the Fourteenth Amendment, allowing him on the ballot in some states and not others. Partisan state officials and judicial appointees could determine the outcome of a national Presidential election by exploiting Fourteenth Amendment insurrection challenges in critical battleground states. The framers of the Fourteenth Amendment, they argue, could not have embraced such a chaotic prospect.
But the provisions and phrases of the Constitution do not always fit together like the pieces of a jigsaw puzzle. This is why the Constitution sustains itself with an independent federal judiciary, a constitutional amendment process (rigorous and demanding that it is), and authority for Congressional intervention where appropriate to soften the rough edges of the Constitution.
So now the case likely heads to the United States Supreme Court. As we've noted before, the case could be heard minus Justice Clarence Thomas as he may be recused due to his wife's interactions with White House officials during the January 6 events. Trump appointed three members of the Court and, including Justice Thomas, conservatives hold a 6-3 majority. But the outcome of this case is far from predictable. Divorcing politics from such a high-wire constitutional court battle seems impossible, but the members of the Supreme Court, as it was forced to do in Bush v. Gore after the 2000 election, will be dragged into the spotlight again.