[Opinion and Analysis]
The U.S. Supreme Court case of Trump v. Anderson, the Trump ballot eligibility case, was published today, March 4, 2024. Below are extensive quotes from the case along with some of our notes. Our preliminary opinion of it follows that.
Sections 3 and 5 of the Fourteenth Amendment to the U.S. Constitution provide as follows:
Section 3
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Section 5
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
According to the Supreme Court’s opinion they granted former President Trump’s petition for certiorari, which raised a single question: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”
[Author’s Note: It’s important to note the single narrow issue the Court was asked to decide.]
In the court below the Colorado Supreme Court had held:
“ (1) that the Colorado Election Code permitted the respondents’ challenge based on Section 3; (2) that Congress need not pass implementing legislation for disqualifications under Section 3 to attach; (3) that the political question doctrine did not preclude judicial review of former President Trump’s eligibility; (4) that the District Court did not abuse its discretion in admitting into evidence portions of a congressional Report on the events of January 6; (5) that the District Court did not err in concluding that those events constituted an “insurrection” and that former President Trump “engaged in” that insurrection; and (6) that former President Trump’s speech to the crowd that breached the Capitol on January 6 was not protected by the First Amendment. [emphasis added.]”
[Author’s Note: Importantly, the Colorado Supreme Court also held that Section 3 of the Fourteenth Amendment was self-executing and thus needed no other authorizing legislation from Congress under Section 5 to be enforceable. Moreover, the Colorado Supreme Court held that Section 3 required no prior criminal conviction of the candidate accused of insurrection in order to be enforced.]
The U.S. Supreme Court’s opinion then went on to state:
“Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59 (1996); see also Ex parte Virginia, 100 U. S. 339, 345 (1880)….”
[Auhor’s Note: The U.S. Supreme Court noted that it is not in the nation’s interest to have different states with different rules promulgate different outcomes regarding eligibility for office, especially the Presidency. It noted that only once before has any state ever attempted to disqualify a federal office holder. The Supreme Court said that this was indicative of the fact that the states probably already recognized that there were strict limits on their power to regulate federal elections.]
The U.S. Supreme Court went on to state that:
“This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
The U.S. Supreme Court was unanimous in its holding that: , “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”
Four justices wrote two separate concurring opinions agreeing with the result but criticizing the potential scope of the Court’s ruling opining that the majority opinion went further than it needed to go to decide the simple question before the Court.
Preliminary Analysis of Reasonandbalance.com
Initially we should note that in our prior article about this case we mentioned: (1.) that the patchwork of existing state and federal laws (and/or lack thereof) have traditionally given a lot of responsibility in handling federal elections to the states. (And this is true even for Presidential elections); and (2.) the U.S. Supreme Court may reverse the Colorado Supreme Court for reasons relating to the Supremacy Clause of the U.S. Constitution or something akin thereto (see end note *** of our December 27, 2023 article “The Eroding Rule of Law” The Eroding Rule of Law and “Trump, the Ballot and Voting Rights” Trump the Ballot and Voting Rights ). We also noted in those articles that retired federal appellate judge Kenneth Luttig, an extremely respected and widely followed judge with sterling conservative credentials agreed with the Colorado Supreme Court’s opinion disqualifying Trump from the Colorado ballot on the basis that Trump was guilty of insurrection.
It appears from reviewing the opinion that the U.S. Supreme Court (1) did largely overrule the Colorado Supreme Court for reasons relating to the supremacy of federal government over that of the states; and that one of the following things occurred: (a) it failed to take point (1.) above into account, (b) it disagreed with it or (3) didn’t care about it. In any event, in our opinion it took a giant first step in changing the federal/state balance of power and responsibility in federal election matters.
The idea of federalizing the election process, to have just one set of uniform federal election rules is definitely attractive in many ways. The problem here is that starting a new federal election system in this case, without the benefit of any prior Congressional action imposing it on the states, is nothing short of the type of judicial activism that conservative judges and politicians have historically railed against. Isn’t, as conservatives always say, Congress and not the Courts who should make law? Shouldn’t courts just “interpret” existing law? In short, this is clearly one of the biggest cases this Court will handle, and despite being loaded with conservatives, in the end they resorted to the type of activist judicial rule-making that they traditionally have abhorred and accused liberal/progressive judges of using in an abusive manner in the past. Moreover, aren’t conservatives usually keen on preserving states’ rights? Wasn’t it always the liberals who were guilty of imposing the dictates of the big bad federal government on the states? How things have changed.
Even if the Supreme Court is not creating a new federalized election system isn’t the idea that the states cannot enforce a provision of the 14th Amendment quite novel? Don’t states have the obligation to enforce other provisions of the Fourteenth Amendment even if Congress does not act under Section 5? What about the Equal Protection Clause of that Amendment? The point is that Section 5, was drafted because when the Constitution was originally drafted the federal government was more or less thought of as having more limited and expressly stated powers than it does today and Section 5 was enacted merely to be crystal clear that Congress could fill in any gaps in Fourteenth Amendment enforcement. Section 5 wasn’t enacted to make the Fourteenth Amendment unenforceable unless Congress enacted additional legislation.
In any event, what the Supreme Court held was that the states cannot disqualify a candidate for federal office on the basis of Section 3. It held that States can use Section 3 to disqualify candidates from State office but not candidates for federal office. But probably more significantly, the Supreme Court, without being asked to do so, broadened its opinion and foreclosed any realistic possibility that the Justice Department can bring an action to disqualify a candidate from office unless Congress first passes an actual statute allowing it do so. And this appears to be true regardless of how flagrant a candidate was in committing even the most violent and bloody insurrection one can imagine.
The bottom line is that the result in Trump v. Anderson is extremely disappointing because the nation’s highest court surely recognizes that in the current highly volatile and polarized political environment there is virtually zero chance that Congress (with the House being controlled by one party and the Senate another) will pass a law allowing the Justice Department to act to disqualify a candidate from office because of his or her insurrectionist activities, no matter how open and obvious those activities were. In fact, for a myriad of other reasons it may well be extremely difficult, if not highly improbable, for Congress to ever pass such a law in the future– all of which is extremely alarming because such a law is now, more than ever, clearly needed. And if all of the foregoing is true, what does that portend for our democracy and the peaceful transfer of power in the future?
In short, if a candidate for the Presidency gets on a bullhorn and tells his supporters to arm themselves, shoot their way in and takeover the Capitol and force the electors at gunpoint to vote him to be President, there’s nothing anyone can do to disqualify him from running for President unless Congress first passes a law allowing someone to do that. And, in the current environment it is highly unlikely that Congress will pass such a law.
Again, one must ask: How can any of us expect brave opposition politicians, whistleblowers, policemen and security personnel to protect the peaceful functioning of our governmental institutions and the lives of those committed to it, if the courts throw up so many procedural barriers that the law becomes a mere mirage without any enforceable substance?
In short, one has to very seriously question whether Trump v. Anderson is yet another step in towards the demise of the rule of law and our democracy. We say the demise of the rule of law because the opinion here is that the Colorado Supreme Court was correct and that their opinion reflected the true state of the law until the U.S. Supreme Court’s decision in Trump v. Anderson.
Federally controlled federal elections might well be a great idea, but Trump v. Anderson is the worst possible way to start going about it.**
March 4, 2024 (corrected and revised March 5, 2024)
David Dixon Lentz
© Copyright 2024; David Dixon Lentz; All Rights Reserved.
** Very interestingly, the U.S. Supreme Court opinion does not seem to say or do anything to affect the Colorado Supreme Court’s finding that Trump was in fact an insurrectionist. The U.S. Supreme Court’s opinion merely states that the state courts cannot, regardless of whether Trump committed insurrection, disqualify Trump from office on the basis of Section 3 simply because they do not have the power to do so. Nevertheless, the Colorado trial court’s finding is possibly res judicata on the issue of whether Trump is an insurrectionist. What consequence follows from that fact, if any, is anyone’s guess but given the U.S. Supreme Court’s opinion requiring prior Congressional action to enforce Section 3, it is doubtful that there is any.