I didn’t expect the Supreme Court to uphold Colorado’s disqualification of Trump under the “insurrection clause” of the 14th Amendment, which was enacted after the Civil War to keep ex-Confederates from taking control of the Federal government.
The Colorado statute establishes a simple and expedited procedure, less than a full-blown trial, that allows election officials to keep unqualified candidates off ballots. The need for that is obvious. But this law was designed to deal with whether candidates meet residency requirements and other legal qualifications for office. It was used to reject the candidate filing for U.S. president who was under age 35.
But that’s a far cry from deciding someone is an “insurrectionist.” It’s not designed for that. The Colorado judge blew through the statute’s 5-day deadline and took a month to decide, after a rather extensive trial. Colorado’s top court, on appeal, disqualified Trump in a 4-3 decision with heated dissents. You know right there, from the intense disagreements among Colorado’s top judges, that this decision wasn’t likely to survive in the Supreme Court, and it didn’t.
But it wasn’t overturned the way I expected. I thought SCOTUS (the acronym for Supreme Court of the United States) would say the Colorado procedure is inadequate for determining 14th Amendment disqualification. Determining whether a candidate satisfies the qualifications for an office is simple and straightforward; imposing disqualification from office is not, as the Colorado judge recognized by affording the parties far more due process than the state procedure envisioned. In addition, disqualification is a penalty, and therefore should require more due process.
Instead, SCOTUS ruled states can’t determine disqualification from federal offices, although they can for state and local offices. (In a subsequent order, SCOTUS declined to review a New Mexico judge’s disqualification of Couy Griffin, an elected county commissioner who was convicted of participating in the Jan. 6, 2021, Capitol riot. He can never hold a New Mexico office again, but could be elected to Congress.
The SCOTUS ruling left many loose ends for future decision. These include:
- Who makes the decision, the courts or Congress?
- Does the person have to be convicted of a crime first? Historical precedent says no; hundreds of Confederates were disqualified without being prosecuted.
- Would Congress have to enact implementing legislation? Advocates argued the 14th Amendment is self-executing, but the Supreme Court seems unlikely to agree. The Congress that adopted the 14th Amendment also enacted laws to enforce its insurrection clause, then repealed them, so no law is in place today; this historical precedent suggests Congress would have to re-enact such legislation to activate the insurrection clause.
- What is the definition of “insurrection”? The Colorado ruling addressed this at length, competently, and determined Trump is an insurrectionist. SCOTUS didn’t address this, but might not agree with the Colorado judge’s reasoning and conclusion, were it to decide the issue.
- Does the 14th Amendment only apply to Confederates, or also to future insurrections? The argument for the latter is pretty strong; nothing in the amendment’s language suggests it was intended as a one-time thing.
This isn’t a complete list of unresolved issues; it’s what I can think of right now.
One thing that does seem clear is an already unpopular SCOTUS didn’t want this hot potato in its lap. The justices drop-kicked it to the voters. It wasn’t a partisan decision; after all, the SCOTUS ruling against Colorado’s decision was 9-0. Their bias, if anything, was to “let the people decide.”
This doesn’t mean it would always do so; I’m pretty sure if Congress expressed its intent to enforce the insurrection clause by enacting implementing legislation, SCOTUS would consider it the duty of the judicial branch to decide cases brought under it. But I see little chance of getting a bill through Congress while Republicans control one of the chambers and their party’s leader is an indicted seditionist.