The Supreme Court on Monday unanimously restored former President Donald Trump to the ballot in Colorado, and in so doing effectively threw out attempts to use the 14th Amendment to keep him off the ballot in other states, such as Maine and Illinois.
However, the unanimous holding in the case camouflaged some deep divisions in the Court, principally between the five Justice core supporting the Court’s reasoning (Chief Justice Roberts, Justices Thomas, Alito, Gorsuch and Kavanaugh) and the three Democrat Justices – Sotomayor, Kagan and Jackson.
Justice Amy Coney Barrett for her own somewhat idiosyncratic reasons chose to offer a separate concurrence saying she agreed with the result, but that the Court should have limited itself to resolving the case before it using the narrowest and simplest principles necessary, and by the way, we should all be nice to each other.
The Democrats, on the other hand, appeared to be desperately trying to keep the door open to having some Democrat-appointed U.S. Attorney charge Mr. Trump under the successor statute to the Confiscation Act of 1862, which is 18 U. S. C. §2383, the current Insurrection Act under which Trump has never even been charged, let alone convicted.
The failure of the Democrats to pursue a criminal charge of “insurrection” against Trump under 18 U. S. C. §2383 has always been an obvious and fatal flaw in their 14th Amendment strategy and revealed it to be more political narrative than a legitimate legal campaign to root out and punish an effort to overthrow the government – which is what an insurrection is after all.
The majority opinion precluded efforts to disqualify Mr. Trump from holding federal office except according to procedures set forth by Congress. *
Thus, the Democrats on the Court objected to what they characterize as the majority’s choice to go beyond what is necessary to resolve the case and to proceed to “decide novel constitutional questions to insulate this Court and petitioner from future controversy.” They complained that the “majority shuts the door on other potential means of federal enforcement.” And they did not agree that implementing legislation by Congress is needed in order to make section 3 of the 14th Amendment operative.
The Democrats further complained that the majority held that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law.
They conclude by charging that the majority, “[b]y resolving these and other questions, … attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
To us this is an obvious plea to leave the door open to, say the U.S. Attorney for the District of Columbia, to charge Trump with insurrection under 18 U. S. C. §2383 and get him before about the most unfriendly judges and jury pool that could be found.
The fact that Democrats have never even tried to indict Mr. Trump under the existing insurrection statute (18 U. S. C. §2383) leads us to believe they never thought they could make the charge stick even in a Trump-hating jurisdiction like Washington, DC.
It is important to recognize that the Supreme Court did not find former President Trump innocent of the claims he incited or participated in an insurrection. What the Court said was that the state-based efforts to disqualify him have no basis in law and are thus void.
However, the Biden Justice Department could indict Mr. Trump tomorrow for insurrection or the Democrat-controlled Senate could read the Supreme Court’s opinion and pass a bill tomorrow clarifying the procedures to enforce Section 3 of the 14th Amendment, thus setting the stage for him to be tried and if convicted, disqualified.
Are we predicting that will happen? No.
In their attacks on Donald Trump Democrats have already violated most of the norms and boundaries of American politics and campaign law. The imperative to keep alive the political narrative that Donald Trump headed up an “insurrection” on January 6, 2021, may very well lead the Biden Department of Justice to indict him under 18 U. S. C. §2383 or force the Democrats to take the Supreme Court up on its decision by drafting and trying to move a bill in the Senate to set up a procedure to try Trump according to the provisions of the 14th Amendment. If that happens, get ready for a wild ride between now and Election Day.
*Mr. Trump has not been indicted or convicted under 18 U. S. C. §2383. Is the statute as presently enacted enough to trigger a trial and potential disqualification or is further legislation tailored to the specifics of Trump’s alleged “insurrection” necessary? This part of the Court’s ruling leaves us with questions in that regard:
Moreover, permitting state enforcement of Section 3 against federal officeholders and candidates would raise serious questions about the scope of that power. Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” City of Boerne, 521 U. S., at 520. To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999). Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. It bars persons from holding office after taking a qualifying oath and then engaging in insurrection or rebellion—nothing more. Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. See Tr. of Oral Arg. 123
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Blue state secretaries of state
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18 U. S. C. §2383 insurrection statute
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Arizona Democrat Secretary of State Adrian Fontes
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Denver District Court Judge Sarah B. Wallace
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Cowboys for Trump cofounder Couy Griffin
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Arizona Secretary of State