The Supreme Court today ruled unanimously that states may not exclude Donald Trump from this year's presidential ballot based on the claim that he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. "Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates," the Court says in Trump v. Anderson, the Colorado Supreme Court erred by applying that provision to the former president and barring him from the ballot.
That conclusion is not suprising given the misgivings the justices expressed when they considered the case last month. The issue that drew the most attention during oral arguments was whether states have the authority to independently enforce Section 3 in federal elections. By focusing on that question, the Court avoids delving into the issue of how to characterize the Capitol riot or Trump's role in it.
Section 3, which was aimed at preventing former Confederates from returning to public office after the Civil War, says: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
The Supreme Court's per curiam opinion endorses the interpretation of Section 3 that Chief Justice Salmon P. Chase embraced the year after the 14th Amendment was ratified. Chase, acting as the circuit justice for Virginia, noted that implementing Section 3 requires determining "what particular individuals are embraced" by that provision. "To accomplish this ascertainment and ensure effective results," he added, "proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable."
The Constitution "empowers Congress to prescribe how those determinations should be made," the Supreme Court says. "The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass 'appropriate legislation' to 'enforce' the Fourteenth Amendment."
The opinion quotes Sen. Jacob Howard (R–Mich.), who explained during the debate over the 14th Amendment that Section 5 "casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith." The Court also notes that Sen. Lyman Trumbull (R–Ill.) said congressional legislation was necessary to keep former Confederates out of public office. Consistent with that view, Congress approved the Enforcement Act of 1870, which "authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3" and "made holding or attempting to hold office in violation of Section 3 a federal crime."
This case "raises the question whether the States, in addition to Congress, may also enforce Section 3," the Court says. "We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."
Federal officials "owe their existence and functions to the united voice of the whole, not of a portion, of the people," the Court notes, quoting a 1995 decision involving term limits. "Powers over their election and qualifications" therefore "must be specifically 'delegated to, rather than reserved by, the States.'" Yet "nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates." The terms of the 14th Amendment "speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5."
That reservation of power, the Court says, is consistent with the general thrust of the 14th Amendment, which says states may not "abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote." It would be "incongruous," the opinion says, "to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office."
The Constitution does "authorize States to conduct and regulate congressional and Presidential elections," the Court concedes. "But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power."
The last sentence of Section 3, the Court says, reinforces the impression that Congress alone has that authority. It "empowers Congress to 'remove' any Section 3 'disability' by a two-thirds vote of each house," the opinion notes. "The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people's chosen candidates could take office. But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle."
The Court thinks it is telling that the Colorado voters who challenged Trump's eligibility failed to identify "any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment." States "did disqualify persons from holding state offices following ratification of the Fourteenth Amendment," the opinion observes. "That pattern of disqualification with respect to state, but not federal offices provides 'persuasive evidence of a general understanding' that the States lacked enforcement power with respect to the latter."
If the Colorado Supreme Court were correct in concluding otherwise, we would probably not get "a uniform answer consistent with the basic principle that 'the President…represent[s] all the voters in the Nation," the justices say. "Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations." The upshot "could well be that 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)."
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson concurred in the result. But they filed a separate opinion that faults their colleagues for deciding more than was necessary to resolve the case. They agree that allowing each state to decide whether a given presidential candidate is disqualified under Section 3 "would create a chaotic state-by-state patchwork, at odds with our Nation's federalism principles." That conclusion, they say, would have been sufficient reason to overrule the Colorado Supreme Court.
But the majority went further, they argue, by holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." That conclusion, they add, "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."
Sotomayor et al. argue that the text of Section 3 suggests the majority is wrong to conclude that candidates can be barred as insurrectionists only through congressional legislation. "Section 3 provides that when an oathbreaking insurrectionist is disqualified, 'Congress may by a vote of two-thirds of each House, remove such disability,'" they write. "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."
Sotomayor et al. also suggest that the majority opinion misrepresents Trumbull's position on Section 3. The majority, they say, "neglects to mention the Senator's view that '[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,' with the proposed legislation simply 'affor[ding] a more efficient and speedy remedy' for effecting the disqualification."
The majority's position "forecloses judicial enforcement of [Section 3], such as
might occur when a party is prosecuted by an insurrectionist and raises a defense on that score," Sotomayor et al. write. "The majority further holds that any legislation to enforce this provision must prescribe certain procedures 'tailor[ed]' to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law."
By resolving a question it did not need to reach, "the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office," Sotomayor et al. say. "It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course."
Justice Amy Coney Barrett also wrote a separate opinion concurring in the judgment. "I agree that States lack the power to enforce Section 3 against Presidential candidates," she says. "That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced."
At the same time, Barrett implicitly rebukes Sotomayor et al. for "amplify[ing] disagreement with stridency." The Court "has settled a politically charged issue in the volatile season of a Presidential election," she writes. "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."
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