Why the Colorado Decision Will Fall

In light of the decision of the Colorado State Supreme Court to remove Donald Trump from that state's ballot in 2024, I asked our resident Professor of Law, John Yoo, which way he believed SCOTUS would rule: "I agree in toto with the expert testimony filed in the trial court by my good friend, Robert Delahunty."

Delahunty, who served served for thirteen years in the Office of Legal Counsel in the Department
of Justice, laid out three main points in opposition to the petitioner's filing.

1. A former President is not among any of those whom Section 3 identifies as subject to its sanctions. Petitioners rely on a flawed understanding of the constitutional term “officer of the United States.” That term appears three times in the original Constitution. In all three occurrences, the President is distinguished from an “officer of the United States.” No court has ever construed the term “officer of the United States” to include the President. Together with other textual and historical materials, the evidence is compelling that Section 3’s jurisdictional element does not include the President.
2. Section 3 is not self-executing. More precisely, it cannot be enforced in court without implementing congressional legislation under Section 5 of the Fourteenth Amendment. ... (O)ne should look to Congress to enact enforcement legislation under Section 5 of the 14th Amendment. But no relevant congressional legislation enabling the States or private persons to enforce Section 3 exists here.
3. The difficulties of interpreting Section 3’s offense element, and especially of defining what is meant by having “engaged” in “insurrection,” support the conclusion that the Section is judicially non-self-executing. Guidance from federal justiciability doctrines and separation of powers theory counsels against a wide-reaching application of Section 3 by the judiciary unless it is so authorized by Congress.