No, there is no one weird trick to keep former President Donald Trump off the ballot and out of the White House. That is the unanimous opinion of the Supreme Court, which ruled Monday that the 14th Amendment does not authorize states to disqualify presidential candidates from seeking the office based on alleged oath-breaking and insurrection. This settles a legal controversy whose answer ought always to have been clear, leaving primary responsibility for preventing Trump 2.0 in the hands of voters.
Nearly as important as the substance of the Supreme Court’s decision this week was its speed. The justices expedited review of the Colorado Supreme Court’s Dec. 19 ruling that Mr. Trump was ineligible thanks to the Constitution’s “insurrection clause.” Thus their opinion arrived one day before Super Tuesday’s nominating contests. That allowed voters to choose from among all the candidates without worry that their preferred option will be removed by the time of the general election. The country would benefit from similar promptness in another matter under the high court’s consideration: Mr. Trump’s weak claim that he is immune from criminal prosecution.
Of course, the substance of the 14th Amendment case was what matters most. The notion that an arcane Civil War-era provision could be used to exclude Mr. Trump from presidential politics was always a bit too good to be true. The arguments in favor contained multiple points of failure: Did the insurrection clause even apply to the presidency, as opposed to the “offices” it explicitly named? Had the rule against rebels returning to power in Washington, approved soon after the Civil War, already been expunged with the Amnesty Act of 1872? Was the former president even an insurrectionist, and who should decide? As it happened, the Supreme Court didn’t need to bother with these intricacies. The justices turned instead, sensibly, to federalism.
The framers designed the presidency as a uniquely national office, so it made little sense to suppose that the authors of the 14th Amendment could have intended to make eligibility subject to a de facto state veto. The justices accordingly noted that federal officers “owe their existence and functions to the united voice of the whole, not a portion, of the people.” They warned against the “patchwork” that would result from allowing various states with various rules to make various determinations about who may or may not run for federal office.
More compelling still, the justices put these precepts in historical context. The 14th Amendment, drafted in the immediate aftermath of a rebellion carried out under the bogus “states’ rights” banner, was at its core a rebalancing of power between the states and the federal government — to limit the former and strengthen the latter. “It would be incongruous,” they pointed out, “to read this particular Amendment as granting the States the power — silently no less — to disqualify a candidate for federal office.”
To be sure, the court’s unanimity was not perfect. In a disgruntled joint concurring opinion, liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson took their conservative colleagues to task for declining to limit their rationale to federalism. Instead, the court’s majority opinion went on to say that nobody can enforce Section 3 against anybody without an act of Congress detailing whom the provision disqualifies. The three liberals called this judicial overreach, designed to “insulate this Court and petitioner” from future political firestorms.
They have a point: The 14th Amendment is far from clear on the matter, and Section 3 does become harder to employ if only Congress can do so. The court leaves no room for Congress to refuse to certify the election of an alleged insurrectionist, for instance, and no room for courts to consider lawsuits against a president or their appointees on the grounds that they’ve been improperly installed. Justice Amy Coney Barrett, a Trump appointee, agreed with the liberals. What she objected to, however, in a short concurrence that read more like a blog post than a legal opinion, was the “stridency” with which the three expressed their quibble. “All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
Justice Barrett might not be the right messenger — spin is not part of the court’s job description — but it was the right message. This often bitterly divided Supreme Court managed to reach the same bottom line: Whatever else it might do, the 14th Amendment does not authorize states to cull the presidential ballot.
The Washington Post
