The Supreme Court has handed down its decision in Trump v. Anderson, and it was unanimous in its judgment that Colorado could not unilaterally disqualify former President Trump under Section Three of the Fourteenth Amendment.
What concerned all nine justices but was ignored by scholars: the chaos that would come with allowing every state to make its own determination on disqualifying a candidate for national office. “Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations,” the Court held in a per curiam opinion. Such variations would extend to potentially inconsistent rules on admissible evidence, the standard of proof required, and whether disqualification would be enabled by only criminal prosecutions or by civil proceedings as well. A joint opinion by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson concurring in the judgment agreed on these points: Colorado’s position “would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.”
The majority went further with a discussion of Section Five of the Fourteenth Amendment, which provides for congressional enforcement “by appropriate legislation.” Whether and how Congress weighs in on the disqualification question turns out to be exceedingly important. That point, made (as I previously discussed) by Chief Justice Salmon Chase siting on circuit in Griffin’s Case (1869), remains a good one. Quoting Chase, the Court noted that “proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable” to implementing Section Three, and the Constitution empowers Congress to make such determinations. Congress had enacted such procedures in the Enforcement Act of 1870, and 18 U.S.C. § 2383, which punishes rebellion or insurrection, remains on the books today.
The joint separate concurrence and a short opinion by Justice Amy Coney Barrett concurring in part did not deem it necessary to reach the same conclusion regarding congressional enforcement of Section Three. But all agreed that Colorado had run afoul of principles of federalism.
So much for the long list of people who weighed in on this case to declare that Colorado’s position was the only constitutionally acceptable one and suggesting that any idiot could see that. Obviously, they were not making legal arguments, but political ones. No doubt there are serious legal scholars who thought Colorado had the better of the arguments. But theirs was never the open and shut case portrayed by the left-wing media.
Given the number of states that are actively trying to replicate Colorado’s act, it was prudent of the Court to have a decision that gives more clarity and does not speak to the specifics of Colorado alone. As an illustration, just yesterday I was telling one kid to stop humming because it was annoying their sibling. So they switched to whistling. If I say stop whistling, they’ll switch to tapping their foot. Sometimes I have to just give a broader statement like stop making annoying noises. That’s what the Court is doing here.
Other states should take note and not attempt to do an end-run around this decision.