The Supreme Court Deprecates the Fourteenth Amendment

To the suprise of few Supreme Court watchers, the high court ruled on March 4 in Trump v. Anderson that Colorado did not have the power to remove Donald Trump from the Republican primary ballot on the basis of Section 3 of the Fourteenth Amendment. The court did not consider whether Trump “having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The court declared that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

Upholding Colorado’s right to remove Trump’s name from the primary ballot would, according to Justices Sotomayor, Kagan, and Jackson “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” In separate concurring opinions, Justices Sotomayor, Kagan, and Jackson; and Justice Barrett complain that the court should have gone no further than overturning the Colorado action. Instead, the majority decided matters not at issue in the case and insisted that only Congress can disqualify a candidate under Section 3 of the Fourteenth Amendment.

As an aside, I offer my own view of what the court should have done. It should have observed that the Fourteenth Amendment did not apply to the Colorado case, as the matter at hand was Trump’s seeking his party’s nomination, not his ascension to federal office. It should have further observed that an actual candidate cannot run for an office he or she cannot hold or, at the very least, cannot hold the office sought irrespective of the election outcome. In a perfect world, this would discourage the Republican Party, by whatever mechanism, from making Trump its nominee. In our imperfect world, such a decision would likely kick the can down the road. If Trump became the GOP nominee, some federal decision would need to be made that he could not run. This decision, which would surely be challenged in court, could be made by the Attorney General. Ultimately, the real question would then have to be dealt with, likely by the Supreme Court: was Donald Trump indeed an oathbreaking insurrectionist.

Unfortunately, the Supreme Court appears to have made it virtually impossible to derail Trump’s attempt to again become president on the basis of the Constitution. It is inconceivable that the current Congress will disqualify Trump if only Congress can disqualify him under the Fourteenth Amendment. The Constitution does not require an act of Congress to disqualify a presidential candidate not born in the United States or under the age of 35. Why should it require an act of Congress to disqualify an oathbreaking insurrectionist?

Justices Sotomayor, Kagan, and Jackson point out the ludicrousness of the court’s requiring Congress to determine disqualification based on Section 3 of the Fourteenth Amendment:

Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of two-thirds of each House, remove such disability.” 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.

I fear that the hope that the Fourteenth Amendment can save us from a second Trump term has been dashed. Whether Donald Trump or the Supreme Court is the greater threat to the Republic is an open question.