U.S. Supreme Court

SCOTUS unanimously keeps Trump on ballot amid sparring over reach of decision; did it 'insulate' insurrectionists?

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The U.S. Supreme Court ruled Monday that Colorado can’t kick former President Donald Trump off the primary ballot because it is up to Congress, not the states, to enforce the constitutional ban on insurrectionists holding office. (Image from Shutterstock)

The U.S. Supreme Court ruled Monday that Colorado can’t kick former President Donald Trump off the primary ballot because it is up to Congress, not the states, to enforce the constitutional ban on insurrectionists holding office.

The Supreme Court ruled for Trump in a per curiam opinion. There were no dissents, although four concurring justices said the high court should have issued a narrow decision that kept Trump on the ballot without addressing Congress’ role in deciding the question.

The Colorado Supreme Court had ruled in December that Trump is barred from ballot access under Section 3 of the 14th Amendment.

The provision bars people from holding office if they engaged in insurrection or rebellion after taking an oath to support the U.S. Constitution as “a member of Congress or as an officer of the United States” or as a state office holder.

The Supreme Court was united in its decision that Trump could remain on the Colorado ballot. But the justices differed on the high court’s pronouncement that Section 5 of the 14th Amendment gives Congress the power to enforce Section 3 through legislation.

The disagreements played out in two concurrences by four justices.

In one concurrence in the judgment, the Supreme Court’s three liberal justices faulted the majority for “deciding not just this case but challenges that might arise in the future.”

The three justices agreed that allowing Colorado to kick Trump off the ballot would “create a chaotic state-by-state patchwork, at odds with our nation’s federalism principles.”

But the concurrence said the per curiam majority should not have gone further by deciding that “qualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the 14th Amendment.”

“By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” wrote Justice Sonia Sotomayor, Justice Elena Kagan Justice and Ketanji Brown Jackson.

The holding “shuts the door on other potential means of federal enforcement,” including judicial enforcement and enforcement under general federal statutes, the concurrence said.

“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming president,” they wrote.

In a separate concurrence, Justice Amy Coney Barrett said she also would have gone no further than a decision that states lack power to enforce Section 3. There was no need to “address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced,” she said.

She added that “this is not the time to amplify disagreement with stridency.”

“The court has settled a politically charged issue in the volatile season of a presidential election,” Barrett wrote. “Particularly in this circumstance, writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine justices agree on the outcome of this case. That is the message Americans should take home.”

Although Barrett said the Supreme Court doesn’t have addressed the congressional role, she joined a section of the per curiam opinion that said any congressional legislation enforcing Section 3 must reflect “congruence and proportionality.”

Writing at the Election Law Blog, Rick Hasen, a professor at the University of California at Los Angeles School of Law, said this suggests that Barrett apparently agrees with “the majority on this aspect of Congress’s power, despite what she wrote.”

He thinks that the split on congressional enforcement was 6-3, rather than 5-4.

Hat tip to SCOTUSblog, which had coverage of the decision on its live blog.

See also:

“Chemerinsky: How not to decide Trump’s Colorado ballot case”

“Supreme Court seems poised to keep Trump on the Colorado ballot”

“Trump ballot access case on ‘exceptionally fast’ briefing schedule’ in SCOTUS; ‘sprawling’ arguments possible”

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