Donald Trump won big at the Supreme Court on Monday. The Supreme Court voted unanimously that Colorado could not toss him off their ballot for the presidency.
A couple of months ago, the Supreme Court in Colorado decided it was perfectly acceptable to invalidate Donald Trump on the ballot in Colorado in the primaries of the general election because he was an “insurrectionist.”
The basic premise of their argument was truly inane, claiming that because the Constitution of the United States bars insurrectionists from office, the state government of Colorado could simply declare Trump an insurrectionist and then toss him off the ballot.
That claim had many legal problems. One: how do you define “insurrectionist”? Two: Even if you were going to define “insurrectionist,” that would theoretically have to be done at the federal level, not the state level. Three: How do you even define “insurrectionist” in terms of which party defines it in the federal government? Is that done by some sort of election board? Is it done by the legislature? How does the insurrectionist clause distinguish itself from, for example, issues with age? A state could theoretically throw someone off the ballot if they were not 35-years-old but still running for president, saying simply that this person was not eligible and, therefore, does not get listed on the ballot. But that would be pretty obvious from the federal language.
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On Monday, the Supreme Court wrote:
Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power struck by the Constitution.” … Section 1 of the Amendment, for instance, bars the States from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person . . . the equal protection of the laws.” And Section 5 confers on Congress “power to enforce” those prohibitions, along with the other provisions of the Amendment, “by appropriate legislation.”
Section 3 of the Amendment likewise restricts state autonomy, but through different means. It was designed to help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War. … Section 3 aimed to prevent such a resurgence by barring from office “those who, having once taken an oath to support the Constitution of the United States, afterward went into rebellion against the Government of the United States.”
Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized, to “‘ascertain[] what particular individuals are embraced’” by the provision. … Chase went on to explain that “[t]o accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable.” … For its part, the Colorado Supreme Court also concluded that there must be some kind of “determination” that Section 3 applies to a particular person “before the disqualification holds meaning.”
The Constitution empowers Congress to prescribe how those determinations should be made.
So they have said that under Section 5 of the 14th Amendment to the Constitution, it should be Congress defining who is an insurrectionist and who is not. They say Congress’ Section 5 power is critical when it comes to Section 3.
This case raises the question whether the States, in addition to Congress, may also enforce Section 3. 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.
The court is making two separate arguments. Argument number one is that only Congress can define the word “insurrectionist” for purposes of who gets on the ballot and who does not. Argument number two is that even if that were not the case, the states do not have the capacity to do that. So theoretically, a different part of the federal government could actually create an enforcement mechanism that wasn’t the legislature. But states don’t have any power to enforce Section 3 with regard to federal offices, especially the presidency.
The court goes on to state, “Such power over governance, however, does not extend to federal officeholders and candidates. 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.’”
Ultimately, there were two arguments made: that it can only be Congress that determines who is an insurrectionist and who is not, and that states cannot simply toss people out for federal office because that’s the federal government’s job.
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Although all nine members of the court agreed with the result, a slight dissent on sort of the rationale came from the liberal justices Sotomayor, Kagan, and Jackson. That dissent was written specifically to create a sideshow of controversy — because there really was no controversy. Everyone agreed Colorado couldn’t just toss Trump off the ballot.
But the minority opinion here, concurring in judgment, tried to find a point of differentiation from the majority opinion specifically so they could say that the majority opinion was overreaching in favor of Trump. They agreed that allowing Colorado to simply declare who can and can’t be on the ballot would violate the Constitution of the United States.
But the Court also stated:
Yet the majority goes further. Even though ‘[a]ll nine Members of the Court’ agree that this independent and sufficient rationale resolves this case, five Justices go on. They 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, and we therefore concur only in the judgment.
Basically, what they have said is that the conservative majority on the Court did this for Trump. What’s weird is that they’re claiming the Supreme Court majority went beyond its remit in order to help Trump, presumably because they think that if Congress were run by Democrats, a simple piece of legislation not defining insurrection, but just saying Donald Trump cannot run because he is an insurrectionist, might be sufficient.
In the end, the bottom line is what Amy Coney Barrett stated: This is 9-0. We’re done here.