Jan. 6 is back, this time with a Colorado insurrection ruling in the mix

Donald Trump is ineligible to be president.

An impartial assessment of facts and law leads to that conclusion, according to some constitutional scholars.

There is little doubt that the Republican president-elect will be inaugurated in January, and there is no doubt that he won the November election. But his status as disqualified from the presidency was established by Colorado courts last year, and his inauguration will do nothing to change that.

The Colorado case resulted in a U.S. Supreme Court ruling against state enforcement of his ineligibility. But the court didn’t deny his ineligibility, and enforcement mechanisms remain a debated matter. Some constitutional scholars view the joint session of Congress on Jan. 6, 2025, when members will certify electoral votes, as an opening for congressional enforcement.

That means the U.S. House and Senate members from Colorado, where Trump’s disqualification was affirmed after lengthy legal proceedings, more than any of their colleagues must carefully consider what the law demands.

There is virtually no chance that the state’s four congressional Republicans, who belong to a party that is now an authoritarian personality cult, can be persuaded to put the Constitution over party. But Congress’ six Colorado Democrats, as they participate in the certification process, have a special responsibility to weigh their oath to the Constitution and their role in protecting democracy from an administration bent on crushing it.

Section 3 of the 14th Amendment, adopted in the aftermath of the Civil War, says no person who took an oath to support the Constitution then “engaged in insurrection” can hold any office in the United States. Last year, a group of Colorado voters sued in Denver District Court to block Trump from the Colorado ballot. They argued the insurrection clause clearly applied to him. The case made its way to the Colorado Supreme Court, which sided with the plaintiffs and blocked Trump from the ballot. A majority of justices agreed with the lower court that “the events at the U.S. Capitol on January 6, 2021, constituted an ‘insurrection'” and that “President Trump ‘engaged in’ that insurrection through his personal actions.”

The U.S. Supreme Court overturned the Colorado ruling, but that outcome was based on the high court’s reasoning that states do not have authority to enforce Section 3 against federal candidates for office. If the justices thought Trump was innocent of engaging in insurrection, they could have said so, but they didn’t. Left in place was the Colorado Supreme Court’s judgment that Trump engaged in insurrection in violation of Section 3.

What remains is the question of enforcement.

In the U.S. Supreme Court’s “per curiam,” or unsigned, ruling in the case, Trump v. Anderson, a majority of the justices had much to say about how “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

But, according to two of the nation’s preeminent Section 3 scholars, a close reading of the opinion shows that it could allow for a range of possible enforcement mechanisms.

“All it said was that the Fourteenth Amendment confers enforcement power on Congress, that this power could appropriately be used to specify how Section 3 is applied, and that such power was important as a practical matter,” write professors William Baude and Michael Stokes Paulsen in an upcoming paper, a draft of which was published online in October. “Nowhere does the per curiam say that congressional legislation … is required or is a condition of Section Three’s status as law.”

Baude and Paulsen, who have long argued that Trump is disqualified from the presidency and can’t lawfully serve in the office, are widely regarded as experts’ experts on Section 3. They add this about Jan. 6, 2025: “The decision in Trump v. Anderson also does not limit whatever powers the two houses of Congress might properly possess when meeting in joint session pursuant to the procedures established by the Twelfth Amendment to decline to count votes cast by Electors for a presidential candidate who is constitutionally disqualified by Section Three.”

The Yale constitutional law scholar and historian Akhil Amar, who filed a “friend of the court” brief in the case, said during a podcast last month that a “conscientious” member of Congress could choose to reject electoral votes on Jan. 6, 2025.

“The Constitution ultimately makes the Congress, in joint session when it’s opening these electoral votes, they’re the ones who actually have to decide whether these electoral votes are validly given,” he said.

Similar views are shared by other well-known legal scholars, such as Laurence Tribe, who in a social media post last month after Trump was elected wrote that “as an adjudicated oath-breaking insurrectionist, Mr. Trump is constitutionally disqualified under Sec. 3 of 14th Am.”

A rejection of electoral votes in several weeks would be entirely different than the rejection of electoral votes for President Joe Biden by some Republicans in January 2021. In that case, the basis for rejection was the lie that Trump had won the election, while the basis for rejection next month is the truth that Trump is ineligible to hold the office of the presidency.

Members of Congress from Colorado can read findings, which corroborate what they saw with their own eyes during the insurrection, in opinions produced after lengthy witness testimony and exhaustive briefings by courts in their own state.

These matters of law and fact that remain factors as they perform their role in certifying the election.