SCOTUS Reverses Colorado Supreme Court in Trump v. Anderson

In a per curiam ruling on March 4, 2024, the Supreme Court of the United States reversed the decision of the Colorado Supreme Court to remove Donald Trump from the Colorado primary ballot on the basis of his engagement in insurrection under Section 3 of the Fourteenth Amendment to the U.S. Constitution.

The decision to reverse – while hardly unexpected in the wake of the Court’s oral arguments – nonetheless disappointed in its particulars. The most disappointing aspect of the Court’s decision is its breadth: while a narrow decision rooted in due process principles or limited to the office of the Presidency could have served as the basis for reversal, the Court went a (big) step further, holding that the Disqualification Clause cannot be enforced by state courts as to any federal office or candidate in the absence of federal authorizing legislation. 

David French said it well:

It’s extremely difficult to square this ruling with the text of Section 3. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”

In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.

Passing controversial, politically charged legislation is not exactly Congress’s strong suit these days; and while one is tempted to believe that the Court is so cloistered as to be oblivious to this fact, that cannot realistically be the case. What we have, then, is a decision which by its spinelessness subtly invites additional insurrectionist behavior from other federal officeholders. Unless or until a broken Congress unbreaks itself and passes some sort of No-Insurrection-and-We-Really-Mean-It Act, the holders of and candidates for federal office have one less disincentive to engaging in flagrantly insurrectionist conduct (e.g. invading the U.S. Capitol and attacking U.S. security forces, or coordinating such efforts from afar). This is not a good message to send to anyone in an era where insurrections and/or attempts to interfere with the peaceful transition of executive power have recently become a very real concern.

Levi Monagle

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