The Supreme Court’s decision this week not to let Colorado unilaterally kick Donald Trump off the ballot doesn’t come as much of a surprise. As the high court correctly points out, piecemeal, state-by-state determinations of whether the former president is disqualified under the 14th Amendment for engaging in insurrection would result in “chaos.” So far, so good.
But the devil is in the details, especially when it comes to the reasoning in Supreme Court decisions.
While the court unanimously agreed that a Colorado court didn’t have the authority to disqualify a presidential candidate under Section 3 of the 14th Amendment, four justices — including Justice Amy Coney Barrett — thought that the majority went too far. Three justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, even accused the majority of “decid[ing] novel constitutional questions to insulate this Court and [Trump] from future controversy.”
In the genteel, rarified domain of Supreme Court opinions, this is genuinely shocking language indicating a real discomfort with the court’s reasoning.
The minority has a point. While it is easy to see that we need some sort of nationally binding determination as to whether a presidential candidate is disqualified under the 14th Amendment, the court went further than that and held that the 14th Amendment is not self-executing with respect to candidates for federal office.
In other words, before you can disqualify someone for federal office, Congress has to pass a law authorizing you to do it and telling you how it has to be done. Since Congress has not passed such a law, Colorado doesn’t have the authority to kick Trump off the ballot, insurrection or no.
Interestingly, according to this decision, states are still free to apply the 14th Amendment ban on insurrectionist candidates for state offices. That means a state can use its own procedures to ban a candidate for governor from the ballot, but it cannot use those procedures to ban a candidate for the U.S. Senate.
From a purely practical standpoint, that makes a certain amount of sense. But from a legal perspective, this rule is logical gibberish.
If Section 3 of the 14th Amendment isn’t self-executing, then it isn’t self-executing. There is no principled legal reason — certainly not one that is apparent in the text of the amendment itself — to treat federal offices any differently than state offices. Granted, it might be wise to treat federal and state offices differently, but the legitimacy of the Supreme Court depends on reaching wise decisions through principled logic, not just imposing them as ad hoc solutions.
What’s really distressing is that the Supreme Court could have gotten to a similar place with its principles intact. Congress did pass laws enforcing Section 3 shortly after the 14th Amendment was ratified. While most of those laws have been repealed, the sole, somewhat-modified survivor, 18 USC 2383, outlaws insurrection and rebellion while making anyone convicted ineligible for federal office. The court could have held that Congress had already made use of its enforcement powers under Section 5 of the 14th Amendment and preempted state enforcement of Section 3.
In other words, when it comes to federal officers, Congress had already provided an exclusive method of enforcing disqualification for engaging in an insurrection: conviction under 18 USC 2383.
The Supreme Court hates getting dragged into hot political controversies. Nonetheless, they have several cases on their docket this term that have huge implications for Donald Trump and his candidacy. And this was the easy one. The stakes are even higher in the presidential immunity case that the court just accepted.
In that case, the court will be judged not only on what it does, but how it does it – and even when it does it. A decision that pushes off Donald Trump’s trial for attempting to obstruct the electoral count and overturn the results of the 2020 election until after Nov. 5 would leave the court’s reputation for impartiality in tatters.
And that is very dangerous indeed. As the ultimate bastion of American democracy, the authority and legitimacy of the Supreme Court are indispensable for making our Constitution work. The court was never likely to let the Colorado decision stand and open the door to “chaos.” But if the court is not very careful, it may find itself opening that door nonetheless.
Chris Truax is an appellate lawyer in San Diego and a member of the Guardrails of Democracy Project.