The SCOTUS Colorado Decision Was Not Unexpected

I want to start by acknowledging that I wrote favorably about the argument that states could rule Donald Trump ineligible to hold office under the 14th Amendment. I want to further note that even though I was sympathetic to the argument, I was not one of those who called the case a slam dunk. In fact, I specifically said, “I don’t know how the Supreme Court will rule on this case.”

“Ruling Donald Trump ineligible will require significant moral courage (as well as physical courage given the tendency of Trump’s supporters to become violent), but it’s the right call,” I wrote in December. I stand by that.

Based on the text, history, and tradition of the 14th Amendment and bans on former Confederates, there was a strong case to be made that courts could unilaterally block Trump from appearing on the ballot. Legally, the Colorado move was on strong but not infallible legal ground, but the political decision was much more difficult to make. The Supreme Court did not agree with me or Colorado and their opinions count for more than mine.

In a 9-0 ruling, the Court decided in Trump v. Anderson “that States may disqualify persons holding or attempting to hold state office [emphasis in the opinion]. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”

As the Court explains, “Because federal officers ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ powers over their election and qualifications must be specifically ‘delegated to, rather than reserved by, the States. (U. S. Term Limits, Inc. v. Thornton, (1995) (quoting J. Story, Commentaries on the Constitution of the United States)) But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.”

“But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States,” the Court continues in the unsigned per curiam decision, ”The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.”

A big part of uncertainty surrounding the Section 3 of the 14th Amendment was how it was to be enforced. The Federalist Society law professors who first proposed last year that Trump and other insurrectionists were ineligible believed that the amendment was “self-executing.” The Supreme Court has rejected that argument.

Instead, we now have more clarity on what would trigger the bans on holding office in Section 3. Bans for federal office must come from the federal level.

Specifically, the Court ruled, “Responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

In my own opinion, that is going too far. Asking Congress to take action to enforce Section 3 is tantamount to ruling that the section will never be enforced… at least not for insurrectionists of either major party.

In a concurrence that sounds much like a dissent, Justices Sotomayor, Kagan, and Jackson argue that the Court went too far on this point.

“Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles,” the three write. “That is enough to resolve this case. Yet the majority goes further.”

The concurrence continues, “The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.”

The concurring dissenters argue, “Nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the ‘power to enforce [the Amendment] by appropriate legislation.’ Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” This is the same position taken by many constitutional conservatives.

There are definite problems with state enforcement of Section 3. As the Court notes, different state laws and rules of evidence could result in a “patchwork” of rulings that could cause “a single candidate” to “be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).” We’ve already seen the reality of that scenario.

That could still happen with state-level offices where a MAGA insurrectionist could be banned from holding office in one state, as Couy Griffin was in New Mexico, but not in others. That is federalism in action and whatever the individual opinion of members of the Court is on such cases, the ruling did not prohibit these state-level bans.

There are still questions about the 14th Amendment. The Court did not rule on whether the events of January 6 constituted an insurrection, but I believe that the plain language of the Constitution and the commonly accepted definitions of the word “insurrection,” both from present day and the time when the amendment was written and ratified, indicate that the attack on the Capitol was indeed an insurrection.

The Court did not address the legal question of whether the president is an officer of the United States. Again, I think the evidence is strong that Congress intended for all members of the federal government to be held accountable for their actions. It seems inconceivable that the framers of the amendment would want to ban insurrectionists from holding lower offices but be okay with an insurrectionist in the highest office in the land. If anything, the failure to enumerate “president” among the list of offices is a failure to imagine that Americans might one day nominate an insurrectionist for president. Or that such a nominee would stand a chance of being elected.

The Supreme Court also did not decide whether Donald Trump is an insurrectionist. As with the other points, I would argue in the affirmative on this question. If Trump’s supporters engaged in an insurrection when they attacked the Capitol to prevent the constitutional process that would inaugurate Joe Biden as president then the man who sent them on that mission is also guilty of insurrection.

Justice Barrett also wrote a short concurrence in which she noted, “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”

I think that is the key point. The Supreme Court was attempting to defuse a contentious political issue by splitting the baby. The justices probably hope that showing a united face will help to preserve the integrity of the Court and trust in the institution.

The other half of the baby-splitting may come when the Court rules on Trump v. United States, the presidential immunity case. Sarah Isgur and David French have speculated on the Advisory Opinions podcast (the only podcast that I’d call must-listen for political and legal matters) that a 9-0 ruling on the 14th Amendment question could be bartered by finding a 9-0 majority in the immunity case as well.

The implication here is that Trump gets to remain on the ballot, but his argument that presidents have “complete and total presidential immunity” will be smacked down by the Court, making it likely that Trump will be convicted of abuses of power (although probably not before Election Day). Even for the trumpiest justices, total immunity for presidents is almost certainly a bridge too far.

If that’s the Court’s plan, I’m not sure it will work. Partisans on the left are decrying the 14th Amendment ruling and I’m certain that MAGA will reject any notion that Trump’s powers can be limited as an abomination.

As for me, I think the decision that states can’t unilaterally ban a federal candidate from the ballot is sensible even if Trump and the other insurrectionists meet the grounds for doing so. I do agree, however, that the Court went too far in mandating congressional action to invoke Section 3.

At this point, the chances for Trump to be banned from the presidential ballot are nil, but MAGA insurrectionists can be banned from state and local offices. If that seems unjust to you then you aren’t alone. The Supreme Court should have at least left the door open for Trump to be ruled ineligible if he is convicted on charges relating to the January 6 attack.

Nevertheless, the Supreme Court has spoken and congressional action is now the law of the land. Those of us who respect the rule of law should abide by this decision and work to ensure that insurrectionists are not placed in positions of power, even where they are allowed to be on the ballot.