Trump on the ballot

As you may have already heard, the United States supreme court this morning overruled the Colorado supreme court’s decision to exclude Donald Trump from the ballot for president under the provisions of the fourteenth amendment. (You can get up to speed on the issue with our previous coverage here and here.) The decision came just in time for tomorrow’s Super Tuesday primaries in 15 states, Colorado among them.

The justices carefully avoided expressing any view as to whether or not Trump had actually engaged in insurrection, or on whether the presidency was an office covered by the disqualification provision, after he had lost on both counts in Colorado. Instead, as expected, they held that a state could not act under it unilaterally in relation to a federal office: disqualifying a candidate for such an office requires federal action.

Thus far, the court was unanimous – a rare thing nowadays in such a politically charged case. But five of the nine justices went further, holding that only Congress could invoke the insurrection clause, and that it must do so by legislation. The three liberal justices dissented vigorously on that point, arguing (correctly) that it was unnecessary to decide the case. Justice Amy Barrett was in the middle, apparently agreeing with the majority’s view of the question but believing that it shouldn’t have been pressed: “For present purposes,” she says, “our differences are far less important than our unanimity.” (You can read all the judgements here.)

To see what is odd about the majority’s view, it helps to look again at the text of section three of the amendment. After the long first sentence, disqualifying those who have engaged in “insurrection or rebellion”, there is a much shorter second sentence: “But Congress may by a vote of two thirds of each House, remove such disability.”

This formed part of the argument against a state’s power to disqualify candidates,* since Congress could vote to lift the disability after the election had taken place, but it would be too late if the state had already removed the person from the ballot. In that respect it is different from requirements like age or citizenship, which are matters of hard fact.

But if legislation is required to implement the disqualification, then the provision for removing it makes no sense: Congress would not need any such power, because it could achieve the same effect by refusing to pass the legislation. In the words of the dissenting justices, “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

As Rick Hasen explains, the judgement opens the door to further interference by the court in the event that Congress does try to act in some fashion. He raises the possibility of a “nasty post-election period in which Congress tries to disqualify Trump but the Supreme Court says Congress exceeded its powers.” But since Congress has shown little inclination to act against Trump to date, I find it hard to imagine that it would do so after he had won an election.

In terms of making trouble for the election, this supreme court ruling may be less important than its decision last week to grant a full hearing on Trump’s claim of presidential immunity from prosecution for election subversion. His claim is almost certain to be rejected, but unless the court moves unusually quickly, it means that his trial will not be able to be completed before the election is held.

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* But only part. If that were all there was to it, it would seem to equally count against the power to disqualify for state offices, yet the court affirmed that the states have that power.

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PS (Wednesday): I’ve now read Ilya Somin’s response to the decision, which is very good. His conclusion:

The price of certainty is that … former officeholders who engaged in insurrection will be mostly free to return to power, and try their hand at subverting democracy again.
Perhaps political norms will keep that from happening. But if norms were that effective, Trump probably would never have been elected to office in the first place, and he certainly would not once more be a leading candidate for the presidency today.