Steven and I briefly weighed in yesterday afternoon on the Supreme Court’s unanimous ruling that state courts lack the authority to keep Donald Trump off the ballot via Section 3 of the 14th Amendment. While we both expected this outcome, we each had different quibbles with the ruling.
SCOTUSblog’s Amy Howe (“Supreme Court rules states cannot remove Trump from ballot for insurrection“) does her usual fine job of summarizing the analyses from the overlapping opinions:
The Supreme Court on Monday ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy, against candidates for federal offices.
All nine justices agreed that Colorado cannot remove Trump from the ballot. But four justices – Justice Amy Coney Barrett in a separate opinion and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in a joint opinion – argued that their colleagues should have stopped there and not decided anything more.
[…]
The justices explained that the 14th Amendment was intended to expand the federal government’s power at the states’ expense. And in particular, they noted, Section 3 was designed to “help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.”
But before disqualifying someone under Section 3, the justices observed, there must be a determination that the provision actually applies to that person. And Section 5 of the 14th Amendment gives the power to make that determination to Congress, by authorizing it to pass “appropriate legislation” to “enforce” the 14th Amendment. Nothing in the 14th Amendment, the court stressed, gives states the power to enforce Section 3 against candidates for federal office, nor was there any history of states doing so in the years after the amendment was ratified.
Moreover, the court added, allowing states to enforce Section 3 against candidates for federal office could create a variety of problems. First, although Section 5 requires Congress to tailor any legislation that it enacts to implement Section 3 so that it specifically targets the conduct that Section 3 was adopted to prevent, state efforts to enforce Section 3 would not face this same limitation. “But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible,” the court concluded.
Allowing states to enforce Section 3 for federal candidates could result in a scenario in which “a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record),” the court warned. And that could create a “patchwork” that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” “Nothing in the Constitution,” the court wrote, “requires that we endure such chaos.”
The court did not reach some of the other issues that Trump had urged them to decide in his brief on the merits – such as whether Trump “engaged in insurrection” on Jan. 6.
Barrett penned a one-page opinion concurring in part and concurring in the judgment. In her view, the court’s holding that states cannot enforce Section 3 against presidential candidates was “sufficient to resolve this case.” The court should not, she suggested, have weighed in on “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
And in a relatively rare move, she appeared to criticize the tone of the joint opinion filed by Sotomayor, Kagan, and Jackson, asserting that “this is not the time to amplify disagreement with stridency. 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.”
In their six-page joint opinion, Sotomayor, Kagan, and Jackson agreed with the result that the per curiam opinion reached – that Colorado cannot disqualify Trump – but not its reasoning. The three justices acknowledged that permitting Colorado to remove Trump from the ballot “would … create a chaotic state-by-state patchwork.”
But the majority should not, in their view, have gone on to decide who can enforce Section 3 and how. Nothing in Section 3 indicates that it must be enforced through legislation enacted by Congress pursuant to Section 5, they contended. And by resolving “many unsettled questions about Section 3,” the three justices complained, “the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
As I noted in anticipation of the ruling yesterday morning, that so many of the Justices took a consequentialist view during oral arguments—which is now reflected in the opinion—is odd. That question is whether state election officials and/or state courts have the authority to apply Section 3, not whether a patchwork system would create chaos. As Steven rightly noted yesterday, ours is and always has been a patchwork system.
Still, while their reasoning varied, all nine Justices agreed that the states lack this power. The liberals simply wanted to stop short of saying who did have the power. While it had not occurred to me in all the months I’ve been writing about “14th Amendment solutions,” the majority’s view that Congress must pass legislation under Section 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”) strikes me as a perfectly sensible answer to that question. Indeed, it’s really the only answer that makes sense.
I share Steven’s frustration that “this is not a ruling that addresses the real problems we are facing in regard to the very real possibility that a fellow who said he understood and loved the rioters at the Capitol may well be the next president of the United States.” But I don’t think that was the Court’s role. The fact that the Republicans are poised to nominate this yahoo for a third consecutive time and that the Democrats are poised to nominate a candidate who could lose to him is outside the purview of the judiciary. Ditto an antiquated Presidential election system that could, for the third time in seven cycles, put a man in office who received fewer votes than his opponent.
No, their role here was simply to rule on whether Colorado had the authority to declare Trump an insurrectionist and bar him under Section 3. All nine Justices ruled that they couldn’t. Thus, as I’ve been saying since I first saw the prospect raised, it’s going to be up to the American people to keep Trump out of office.
Not shockingly, Slate‘s Mark Joseph Stern (“The Supreme Court’s ‘Unanimous’ Trump Ballot Ruling Is Actually a 5–4 Disaster“) isn’t happy with this.
On Monday, the Supreme Court unanimously reversed a Colorado Supreme Court decision removing Donald Trump from the ballot because of his engagement in an insurrection on Jan. 6. But that top-line holding is where the unanimity ended because five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office. As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.
No, it isn’t. All it would take is Congress to pass a law outlining, prospectively, what Section 3 means in a context other than the U.S. Civil War. Does it require conviction of charges under the Espionage Act? Something less than that?
Rather obviously, this Congress isn’t going to pass a law banning Donald Trump from office. The impeachment trial was their chance to do that and, because of the cowardice of most of the Senate Republican Caucus, they abrogated that responsibility. There’s the possibility that they could pass a law that kept some of the worst Capitol Riot offenders, such as the Proud Boys and Oath Keepers leaders convicted of seditious conspiracy, off the ballot but I wouldn’t hold my breath for that. (And, really, I’m not super worried that they’d get elected to federal office, anyway.) So, again, I think we need to think prospectively: what constitutes “insurrection” in a context other than the one Section 3 was written in response to and who adjudicates whether a particular candidate is guilty of it?
Stern at least acknowledges something that many enthusiasts don’t:
This case involved a genuinely difficult dispute: Section 3 of the 14th Amendment, enacted in the wake of the Civil War, bars former insurrectionists from reclaiming office but does not explain how this bar should operate.
That’s been the crux of the issue all along and far too many simply glide over it. Why, it’s obvious that Trump was an insurrectionist, damn it, and the 14th Amendment is self-executing! And, interestingly, Stern concedes this as well:
A group of voters urged the Colorado courts to enforce the amendment on their own, under a state law that lets voters challenge any candidate’s legal qualifications for office. The Colorado Supreme Court heeded the call and dumped Trump from the ballot. All nine justices have now agreed that states may not unilaterally disqualify a presidential candidate. Doing so, they reasoned, would allow a handful of states to effectively determine the outcome of a presidential election, undermining the inherently national nature of both the election and the presidency itself. The Constitution’s division of authority between the federal and state governments cannot permit a state’s go-it-alone effort to disqualify a federal candidate who’s running to represent the entire country.
But that pretty much ends it, no? If neither Colorado nor any other state has the authority, then Trump is on the ballot unless some other entity with the authority removes him. After some back-and-forth about precedents and the arguments between SCOTUS’s conservative and liberal justices in their clashing opinions, Stern writes,
[I]t is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”
This is comparing apples and bowling balls. All of the other provisions limit state action, albeit in ways that would require Congress and the courts to weigh in on. Section 3 is unique in that it limits individual action. Rather obviously, then, someone has to determine who is an insurrectionist.
These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion.
This all strikes me as nonsense. There’s nothing in the ruling precluding judicial enforcement. Indeed, given that any application of a statute enforcing Section 3 ineligibility would result in a lawsuit, it’s damn near assured. Indeed, the legislation itself would be, as noted by the majority, “subject to judicial review.”
Stern closes:
In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6. An optimist might say that by doing so, the majority was just trying to inject stability into the upcoming election. But close court-watchers know that every time this Supreme Court waves the flag of stability, it does so on behalf of Trump and his allies. Anderson’s bottom-line outcome is certainly defensible. But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election
Again, this is absurd. All nine Justices agreed that neither Colorado nor any of the other 49 states have the authority to rule Trump or any other candidate ineligible. While it’s arguable that the majority went too far in saying who did—Congress—Stern and others would have been hopping mad if they’d left that rather obvious question unanswered.
The erstwhile Republican David French offers a broader critique in his NYT column “The Supreme Court Just Erased Part of the Constitution.”
As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.
But Section 3 was already pretty much a dead letter. As noted here endlessly, it was enacted to prevent the very real likelihood of former Confederate leaders being sent to Washington and, in short order, Congress actually passed legislation waiving that disability for all but a handful of them. For most of the last 156 years, it has been a veritable vestigial organ, as there has, thankfully, been a dearth of insurrections.
It’s frankly not at all unreasonable to ask that, if we’re going to enforce it, Congress use the power granted elsewhere in the Amendment to set forth procedures for implementing it. While the prohibition against insurrectionists serving may well be “self-executing,” enforcement of it clearly is not.
A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.
The “officer of the United States” argument has always been absurd. Why on earth would we ban insurrectionists from serving as backbenchers in the House of Representatives but hand them the nuclear codes? And, again, all nine goddamn Justices agreed that states lack authority to enforce Section 3; due process has nothing to do with it.
This canard is beyond tiresome at this point:
We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.
These provisions are remarkably easy to “self-execute” and yet most of them have required clarification. The citizenship requirement has absolutely been legislated. It’s how we know that, for example, John McCain was a “natural-born citizen” despite being born overseas to American citizens serving in the Navy. Even though the ages of 18 (voting), 25 (serving in the House), 30 (serving in the Senate), and 35 (serving as President) would seem self-explanatory, we have legislation setting forth appropriate documentation to establish date of birth.
The Presidential term limit is set forth quite explicitly in the 22nd Amendment, including the provision that “no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President” is eligible for a third term. But, absent legislation (and I’m unaware of any that exists), it’s not at all clear what would happen if someone tried to exceed that limit. It’s just never been an issue because it likely never occurred to any President since its passage to try. It seems reasonable, though, that it’s not up to Colorado to figure it out.
It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.
While I don’t think consequentialism has place in a Supreme Court ruling on Constitutional law, I agree with them and disagree with French on the consequences. It simply makes no sense to me to allow states to decide, ex post facto, what constitutes an insurrection and then ban candidates from the ballot upon finding that they participated. It’s far, far better for Congress to do that prospectively.
Alas, I agree with WaPo’s Philip Bump that “The institutions of government aren’t going to protect democracy.”
The superficial agreement on the decision erodes in the details, which isn’t uncommon. The result, though, is that the institution of the Supreme Court has decided that the institution of Congress is the only element of the American system that can apply the 14th Amendment to a candidate. And Congress, very obviously, won’t do so for Trump.
One would assume that a democratic system predicated on checks and balances would have some process in place to enforce punitive measures when democracy itself was threatened or undermined, but it does not. It has decisions from motivated actors, enough of whom agree politically or ideologically with Trump that his specific actions are waved away. Instead of a defense of democracy, we are repeatedly asked to believe that anything short of Trump retaining power doesn’t count as a substantive challenge to democracy and, therefore, that his participation in the democratic process should be defended.
Had he retained power after Jan. 20, 2021? Then, perhaps, his efforts to do so would have been considered a legitimate threat. And by then, the system that we would assume might hold him to account would already be destroyed.
To be clear, the institutions could do these things; they simply won’t. As already noted, the then-Democratic-majority House impeached Trump for his actions surrounding the riots. Not enough Senate Republicans were willing to vote him guilty. Congress could pass legislation declaring, based on the January 6 Committee findings, that Trump and others who abetted the attempt to steal the election are insurrectionists under Section 3 and thus barred from holding office in the future. They will not.
Our system—any system, really—i predicated on honorable people holding high office. A democracy requires engaged citizens to ensure that they elect honorable people. If those conditions don’t hold—when citizens prefer demagogues to honorable men and politicians value their position over their honor—the system fails. Ben Franklin was on to something, after all, when he declared the Framers had given us “A Republic, if you can keep it.”
