Former President Donald Trump has time and again largely avoided political accountability, which has granted an aura of invincibility to his brazenness. So the hope that the text of the Constitution might halt his return to power was always a dim glimmer. The Supreme Court on Monday snuffed that hope out, issuing a ruling that washed their hands of the matter entirely.
The court declared unanimously that Colorado erred in booting Trump off the state’s primary ballot, overturning the state’s supreme court. The justices concluded that the states lack the authority to enforce the disqualification clause of the 14th Amendment, drafted in the aftermath of the Civil War to block former insurrectionists from holding office, against federal candidates. Five of the justices further asserted that that power must solely lie with Congress and requires new legislation. They made this assertion over the objections of the court’s liberal wing and, to a lesser extent, Justice Amy Coney Barrett, all of whom felt the court need not decide that question. With this ruling, the court found the perfect loophole to avoid ruling on Trump’s eligibility outright — and it lines up Congress to follow suit in the coming months, clearing the path for Trump’s triumphant victory over the rule of law.
Five of the justices further asserted that that power must solely lie with Congress and requires new legislation.
The thrust of the court’s unanimous holding is logical. The patchwork of state election laws has hampered the push to invoke the 14th Amendment from the beginning, as not all secretaries of state are equally empowered to judge candidates’ qualifications. Colorado law specifically grants this power to its secretary of state, leading to the state supreme court decision that the justices overturned on Monday. The justices determined that the only way to evenly apply disqualification at the federal level is to find that no state should have that power.
In focusing on this specific aspect of the extremely broad question the Trump petition put forward — “Did Colorado err in ordering President Trump excluded from the 2024 presidential primary ballot?” — the court avoided ruling on whether the terms of the amendment apply to Trump specifically. The opinion takes no position on whether Trump has violated the terms of Section 3 in his actions, as the respondents asserted and the words of the amendment suggest, or that his actions leading up to the Jan. 6 attack on the Capitol were entirely innocent as his lawyers claimed in their briefings. Issuing an opinion that found the former would have, as the conservative legal scholars who first elevated the case for disqualification last year argued, placed the onus of enforcement on the men and women who print the ballots around the country.
In refusing to make such a judgement, the justices have punted the task of drafting enforcement legislation onto Congress with no guidance as to whether the behavior Trump exhibited meets the amendment’s bar. And given the GOP’s continued willingness to go to bat for him, including members of Congress who themselves will be federal candidates that should be disqualified for supporting insurrection, there is no hope of such legislation passing Congress. Even supposing that a law did somehow manage to arrive on President Joe Biden’s before November, there is nothing in the ruling’s wording to suggest that a majority would not simply find that the new legislation was not properly tailored to “reflect ‘congruence and proportionality’ between preventing or remedying that conduct ‘and the means adopted to that end.’”
A close read of the ruling also seems to foreclose the potential that Congress could act on its own previously enacted authority. Last year, I walked through how the 2022 Electoral Count Reform Act could be used to disqualify Trump under Section 3. The ECRA contains a provision allowing for members of Congress to object to a state’s slate of electoral votes because the “vote of one or more electors has not been regularly given,” a condition that may apply if the candidate they voted for is ineligible under the Constitution.
A close read of the ruling also seems to foreclose the potential that Congress could act on its own previously enacted authority.
But the court’s opinion found that neither the justices “nor the respondents are aware of any other legislation by Congress to enforce Section 3,” which seems to foreclose the ECRA route. And in their warning against the chaos that allowing states the power to enforce Section 3 would bring, the justices also seemed eager to dissuade members of Congress from acting: “The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”
Under Chief Justice John Roberts, the court has excelled at determining things that are solely within Congress’ wheelhouse to fix that the justices are well aware that Congress has no interest in fixing. When striking down the Voting Rights Act’s main enforcement tool in 2013, Roberts left the door open to Congress rewriting the newly defunct Section 4 to better reflect the current state of play. Roberts, a former Justice Department official under two Republican presidents, would have known well there was little chance of that happening with Republicans in control of the House and poised to reclaim the Senate. The same can easily be said of this case.
While concurring in the judgment, the court’s three liberal justices railed against the majority opinion going beyond the case at hand to place any remedy strictly at Congress’ feet. The idea that the only method of enforcing Section 3 of the 14th Amendment is through congressional legislation belies the “self-executing” nature of the Reconstruction amendments. Instead, the majority “simply creates a special rule for the insurrection disability in Section 3” and in doing so has created “novel rules for how that enforcement must operate.”
This is entirely accurate, though blunted in force through their support for overturning Colorado’s decision. It is also likely exactly what the main drafters of this opinion intended. The court gets to look as though it is magnanimously respecting the legislative branch. The inevitable inaction from Congress can be then trumpeted as proof that no legislation was ever necessary — and that a victory from Trump in the fall is entirely constitutional. It’s a ruling that will likely live in infamy as one that under the aegis of consensus paved the way for countless more violations of the Constitution.
