The Supreme Court did what virtually everyone figured it would do: It ruled unanimously that Colorado’s Supreme Court – and, by extension, any and all other state courts and secretaries of state – which had decided Section 3 of the 14th amendment barred Donald Trump from running for President had no authority to do so.
Some of us found the outcome disappointing. Retired 4th Circuit appeals Judge J. Michael Luttig said on CNN that the decision was “stunning in its overreach.” “Let that be a lesson to all of you out there who might be thinking of subverting the Constitution in a Presidential election,” the comedian Jon Stewart said on The Daily Show: “’You go, boy!’”
But was anyone surprised?
Section 3 says that any officer of the United States who has taken an oath to protect the Constitution but has taken part in an insurrection against the Constitution cannot hold federal or state office again. The amendment was passed right after the Civil War to keep former Confederate traitors from returning to power.
The Court did not address the question of whether or not a President was an officer of the United States — which had remarkably been in dispute — or whether or not Trump had actually engaged in an insurrection.
The court argued that since the 14th amendment reduced state power and increased the power of the federal government, the amendment’s framers presumably didn’t intend to give states more power over federal elections.
Luttig and Harvard Law professor emeritus Laurence Tribe wrote months ago that Section 3 was “self-executing”; that is, it didn’t require an act of Congress. That’s not what the majority concluded. The justices pointed to the amendment’s Section 5, which says “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” and concluded that Congressional legislation is the only way in which Section 3 can be enforced. `
The three liberal justices, Kagan, Sotomayor, and Jackson, argued that the Court could and should have decided the case more narrowly. “’If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.’” They write, quoting Justice Roberts’ concurrence in Dobbs. “That fundamental principle of judicial restraint is practically as old as our Republic.” Yet, “[t]oday, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future.”
Just deciding that a patchwork of state decisions shouldn’t control who can run in a national election would be plenty, “but the majority goes further: . . . five justices . . . decide novel constitutional questions to insulate this Court and petitioner from future controversy. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so.
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.”
Justice Barrett didn’t join the liberals but in a separate concurrence she did agree with them that the majority could and should have decided the case more narrowly. The principle that states lack the power to enforce Section 3 against Presidential candidates “is sufficient to resolve this case,” she wrote, “and I would decide no more than that.”
Implying that her fellow-conservatives had been needlessly provocative, she suggested that in the current political climate, “the Court should turn the national temperature down not up.” She sounded more like a Roberts conservative than a follower of Alito. (Or maybe not; The three liberals’ opening quote about not deciding more than necessarily comes from Roberts’ concurrence in Dobbs, the case in which the court scrapped. Roe. This time — at least in public — Roberts said nothing of the kind.)
Dialing it up is what this Court has done so well. Arguably, the decision the Court has made in the Colorado case is less significant than its decision to grant and then slow-walk “expedited” review of Trump’s appeal of a District of Columbia Circuit appeals court decision that he does not have absolute immunity for acts he committed as President. “While the Supreme Court ruling . . . that states cannot bar Donald Trump from appearing on their presidential ballots garnered a lot of attention,” Thomas Edsall writes in The New York Times, “the more politically consequential decision came on Feb. 28, when the court set a hearing on Trump’s claim of presidential immunity for the week of April 22. That delay is both a devastating blow to President Biden’s campaign and a major assist to Trump’s multipronged effort to minimize attention to the details of the 91 felony charges against him.”
And, of course, we’re not likely to see another 14th Amendment case come to trial ever. “The ‘patchwork’ that would likely result from state enforcement would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole,” the justices said in their Colorado decision.
“But in a Presidential election ‘the impact of the votes cast in each State is affected by the votes cast’— or, in this case, the votes not allowed to be cast—’for the various candidates in other States.’ An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”
Cue the violins. Let us ignore the disconnect between that “’link . . . between the National Government and the people of the United States’ as a whole” and the Electoral College, which every informed voter knows can attenuate the popular vote, so that a candidate can – as Donald Trump did in 2016 – win the Presidency with millions fewer votes than his opponent. Let’s look instead at the dire – and no doubt accurate – picture of disenfranchisement that would take place if Trump were banned piecemeal from ballots in various states. But disenfranchisement was the point of Section 3. Besides, how could piecemeal disqualification be any worse than the disenfranchisement that would occur if Congress banned him in all 50 states? It makes no sense. But it does seem to imply that any move by anyone to keep a candidate off the ballot would get a cold reception from this Court
The Court said not only that Congressional legislation was the only way to bar an insurrectionist from holding future office; it also specified that “[a]ny congressional legislation enforcing Section 3 must . . . reflect ‘congruence and proportionality’ between preventing or remedying that conduct’ and the means adopted to that end.”
And who would decide that legislation reflects “’congruence and proportionality between preventing or remedying that conduct’ and the means adopted to that end?” It could only be the Court. Would the current Court find congruence and proportionality? Not likely.
