By Andrea Widburg
Unsurprisingly, given the nature of oral argument during Trump v. Anderson, the Supreme Court has released a unanimous decision reversing the Colorado Supreme Court’s holding that Donald Trump was an “insurrectionist” under Sec. 3 of the 14th Amendment and, therefore, should be barred from the Colorado ballot. This ruling, written in accessible, logical, and unambiguous language, definitively ends a plan that predated January 6 and helps re-federalize federal elections.
Although the Colorado Supreme Court didn’t issue its now-reversed ruling until last December, Democrats have been working since before January 6, 2021, to keep Trump off the ballot for 2024. We have reason to believe that Democrats hoped events on January 6 would get out of hand, given that they removed any barriers (e.g., the National Guard, extra law enforcement) to a potentially out-of-control protest on January 6. Additionally, there were inexplicable behaviors that would agitate the crowd and lead them into the Capitol—behaviors the Democrat-controlled federal government has refused to investigate.
More tellingly, literally within hours of the day’s events, the word “insurrection” appeared from Democrats, NeverTrumpers, and the media:
- President Biden: “It’s not protest; it’s an insurrection.”
- Mitch McConnell: “Senator Mitch McConnell…promptly vowed that the Senate would finish its work Wednesday night, undeterred by ‘failed insurrection.’”
- Mitt Romney: “What happened here today was an insurrection…”
- Senator Angus King (I-Maine): “Today’s violent insurrection…”
- The New Yorker: “This Violent Insurrection Is What Trump Wanted.”
- NPR: “What Groups Were Involved in Pro-Trump Insurrection?”
- The Conversation: “This Trumpest insurrection…”
That suggests coordinated action because “insurrection” was not previously a word that was bandied about regarding protests.
The word’s sudden new currency began to make sense when Trump announced his candidacy. Then, Section 3 of the 14th Amendment sprang into the forefront of political debate:
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.
It turns out, however, that we were ignoring Section 5 of the 14th Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This gets us to the decision in Trump v. Anderson. The Court framed the issue this way: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” It added, “Concluding that it did, we now reverse.” This decision was issued per curiam (that is, we don’t know who wrote it) but emphasized that “All nine Members of the Court agree with that result.”
Here’s the heart of the analysis: In the wake of the Civil War, the 14th Amendment’s whole point was to expand federal power over state autonomy. Unlike other provisions of the Constitution, Section 3 doesn’t acknowledge existing rights. Instead, it subtracts a core constitutional right—to run for office—from specifically identified people. In Section 5, Congress added that it was responsible for determining how to implement the 14th Amendment’s term.
However, proponents of the Section 3 argument say that they weren’t challenging the federal government’s rights. They hold, instead, that states also may apply Section 3. The Court responded,
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.” To hold otherwise would give individual states the power to override “ ‘the united voice of the whole, not of a portion, of the people.’ [Citation omitted.)
The decision points out that no one questions that, once in office, states lack the power to control federal officials. Further, says the Court, the same must apply when people announce as candidates. Again, this is because the point of the 14th Amendment is to disempower the states when it comes to federal matters.
Nor does it help to point to the Elections and Electors Clauses (Art. I, sec. 4, cl. 1 and Art. II, sex. 1, cl. 2), which give the states procedural authority over federal elections. However, that does not translate into the substantive authority to affect the federal government by giving states unilateral power to decide whether they think candidates have run afoul of Section 3.
Giving states the power to make decisions under Section 3 would upend the 14th Amendment by giving states control over the federal government rather than vice versa. They could make it impossible for people with specific values to appear on their ballots, affecting future legislative policies. This problem multiplies when it comes to the presidential election:
Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns. “[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.” [Citation omitted.] But state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President…represent[s] all the voters in the Nation.” [Citation omitted.]
The women on the court issued concurrences (Barrett issued one, and Sotomayor, Kagan, and Jackson issued another), both saying much the same: The decision could have stopped with a tight focus on Colorado rather than striking down preemptively any future efforts to disqualify people under the 14th Amendment. Barrett is a stickler for procedure, which means focusing solely on the stated issue. I feel that the other three were probably disappointed to see future 14th Amendment lines of attack foreclosed.
Overall, the Supreme Court did well today.