The Supreme Court rules that states “have no power” to implement the insurrection clause, “especially” with regard to the presidency, and unanimously permits Trump to be on the ballot in 2024

People expressing their opinions in front of the U.S. Supreme Court in Washington on Feb. 8, 2024 (Yomiuri Shimbun via AP). Former President Donald Trump addressing the crowd at the National Rifle Association’s Presidential Forum in Harrisburg, Pa., on Friday, Feb. 9, 2024 (AP Photo/Matt Rourke).

In a recent decision, the U.S. Supreme Court has ruled that Donald Trump will be allowed to remain on the presidential primary ballot in Colorado. This ruling comes after an attempt by voters to disqualify him and a lower court’s finding that he was ineligible under the Constitution’s insurrection clause. The court’s per curiam opinion rejected these arguments and affirmed Trump’s eligibility to participate in the primary election.

The Colorado primary, along with 15 other states, is taking place on Super Tuesday. Early voting has already begun in Colorado, making the recent ruling by the high court a significant win for President Trump and his supporters. As the presumptive nominee for the GOP, this victory strengthens his chances of reclaiming the White House.

In a landmark decision, the Supreme Court addressed the issue of the “insurrection clause” for the first time in history in the case of Trump v. Anderson. This clause, found in Section III of the Fourteenth Amendment, prohibits individuals who have engaged in insurrection against the Constitution from holding office. It is a provision that dates back to the Civil War era and aims to prevent those who have betrayed their commitment to upholding the Constitution from assuming positions of power.

The justices stated that the responsibility of enforcing Section 3 against federal officeholders and candidates lies with Congress, not the States. As a result, they overturned the Colorado court’s decision that State Secretary Jena Griswold had the power to remove him. The Colorado Supreme Court, on the other hand, upheld a lower-court ruling that allowed him to remain on the ballot in certain aspects. They recognized the presidency as a United States office and acknowledged Griswold’s authority to remove him and invalidate any write-in ballots.

According to the Supreme Court justices, they relied on Section V of the Constitution, which allows Congress, with judicial review, to pass “appropriate legislation” to enforce the Fourteenth Amendment.

According to the majority opinion, Senator Howard expressed the responsibility of Congress to ensure that all sections of the amendment are carried out in good faith when the Amendment was framed.

States possess the authority to disqualify individuals from pursuing or occupying state-level positions. However, it is crucial to note that states lack the constitutional power to enforce Section 3 in relation to federal offices, particularly the presidency.

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In 2020, there were allegations that former President Donald Trump tried to overturn his defeat to President Joe Biden through fraudulent means and force. Citizens for Responsibility and Ethics in Washington (CREW), a federal watchdog group, argued that these attempts were unconstitutional. Historians also lent their support to these claims, with many urging the court to uphold the findings. They pointed out that even Jefferson Davis, the president of the Confederacy, recognized that engaging in insurrection automatically disqualified individuals from holding office in the United States.

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Justice Amy Coney Barrett emphasized in Monday’s opinion that she concurred with the notion that states do not possess the authority to enforce Section III against presidential candidates. However, she clarified that her decision extended no further than that.

Barrett clarified that the suit was filed by Colorado voters in state court under state law. She emphasized that the case did not require them to tackle the complex issue of whether federal legislation is the only way to enforce Section 3.

She kept on speaking, expressing her thoughts and ideas.

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, 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. 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.

During the oral arguments held last month, the justices expressed considerable skepticism regarding the possibility of removing the former president from Colorado’s primary ballot. They raised concerns about maintaining a balance between state and federal authorities, focusing less on whether Trump was involved in inciting insurrection.

According to the ruling on Monday, the justices stated that the purpose of Section III was to maintain a strong and united nation by preventing former Confederates from regaining power after the Civil War. They acknowledged that Section III achieves this goal by imposing a strict penalty of disqualification from holding various offices, rather than granting rights to all individuals.

Allowing Colorado to remove a presidential candidate from the ballot under Section 3 would undermine the intent of the Framers, who envisioned a Federal Government that is directly accountable to the people. Moreover, this would result in a fragmented and inconsistent approach across states, which goes against the principles of our nation’s federalism.

“Justices Sonia Sotomayor, Elena Kagan, and Kentanji Brown Jackson expressed their belief that the available evidence is sufficient to resolve this case,” the justices stated in their concurring judgment.

However, they made it clear that the majority took it a step further. Despite the fact that all nine members of the Court agree that this independent and sufficient rationale resolves this case, five justices decided to address novel constitutional questions in order to protect this court and the petitioner from future controversy.

Sotomayor, Kagan, and Brown expressed their views on the matter.

They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.

In this image, taken from U.S. Capitol Police security video, we can see Shane Jenkins, circled in red, holding an object near the Lower West Terrace tunnel at the U.S. Capitol on January 6, 2021, in Washington. The image was released and annotated by the Justice Department in the Statement of Facts supporting an arrest warrant.

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Sotomayor, Kagan, and Brown underscored an important point in their analysis, highlighting that the text of Section III does not offer any support for the majority view on the disqualification process. They pointed out that Section III simply states that individuals who engage in insurrection and break their oath of office should not hold public office.

The per curiam opinion points out that the clear prohibition does not indicate that enacting legislation under Section 5 is “critical” or define what that word means in this situation. In fact, the text suggests the opposite. Section 3 states that when an insurrectionist who has violated their oath is disqualified, “Congress may, by a two-thirds vote of each House, remove such disability.”

They expressed difficulty in comprehending why the Constitution mandated a supermajority for the removal of a disqualification when a simple majority could render Section III ineffective through repeal or the refusal to pass legislation.

According to the opinion, the Reconstruction Amendments, which consist of the due process and equal protection guarantees, as well as the prohibition of slavery, are considered self-executing. This means that they do not rely on legislation for enforcement. In addition, constitutional rules of disqualification, such as the two-term limit on the Presidency, also do not require implementing legislation. The majority does not suggest otherwise, but instead establishes a unique rule for the insurrection disability in Section III.

In their concurrence, Sotomayor, Kagan, and Jackson expressed strong personal sentiments regarding the conclusions reached by their fellow justices.

“The majority not only addresses the current case, but also goes beyond it. While the enforcement of Section 3 at the federal level is not under consideration, the majority introduces new guidelines on how such enforcement should occur. It takes a stance on Section 3 matters that were not part of the present case, and seeks to prevent any future attempts to disqualify a Presidential candidate based on that provision. In a case that demands judicial restraint, the majority deviates from that approach,” expressed the justices.

The decision will soon affect ballots in other states where Trump’s constitutional eligibility has been challenged and proven. Just recently, a judge in Illinois removed Trump from the primary ballot, recognizing Colorado’s determination that he participated in insurrection on January 6. The Illinois judge also found that Trump had falsely claimed he was legally qualified for the office he sought under Section III.

Trump faced disqualification from the primary ballot in Maine as well. Similar to the situations in Illinois and Colorado, he decided to challenge these decisions. Following the Supreme Court’s ruling, Maine Secretary of State Shenna Bellows is anticipated to take prompt action. It is worth noting that Trump’s disqualification in Maine was temporarily halted by a judge until the final ruling of the high court. Bellows attempted to contest this stay but unfortunately, the appeal was dismissed, according to The Associated Press.

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Noah Bookbinder, the president of CREW, did not view the ruling as a win for Trump.

According to Bookbinder, while the Supreme Court technically allowed Donald Trump back on the ballot, this should not be seen as a win for Trump. The Supreme Court had the opportunity to clear Trump’s name, but they chose not to do so. Every court or decision-making body that has thoroughly examined the issue has concluded that the events of January 6th constituted an insurrection and that Trump incited it. This remains true even today. By removing an enforcement mechanism and allowing Trump back on the ballot, the Supreme Court has failed to rise to the occasion. However, it is now evident that Trump was the leader of the January 6th insurrection, and it is the responsibility of the American people to ensure that he is held accountable.

Free Speech for the People, a group that advocated for voters in Minnesota attempting to remove Trump from the ballot, expressed their disappointment with the decision, describing it as a “mockery” in an email to Law&Crime.

According to a spokesperson, the Supreme Court has made a ruling that allows the disgraced ex-president Donald Trump to run for office again. This decision comes despite his role in inciting and facilitating a violent insurrection that resulted in the defeat of federal law enforcement, the seizure of the national government’s seat, the near assassination of the vice president and key congressional leaders, and the obstruction of Congress from certifying his electoral defeat. This unprecedented event disrupted the peaceful transfer of power, which goes against the intention behind the provision in the Constitution meant to prevent such situations.

The group’s legal director, Ron Fein, expressed his disappointment, deeming it “disgraceful.”

According to Fein, the Supreme Court did not acquit Trump due to the overwhelming evidence of his guilt. Instead, the Justices undermined the Constitution’s inherent protection against insurrectionists and disregarded the significance of the facts.

The court’s decision to release its opinion was remarkably swift, highlighting the rarity of the question and the pressures of timing during the election season. It is noteworthy that the Colorado court issued its ruling in December, and less than a month later, Trump appealed to the high court in the first days of January. The high court, in turn, waited less than a week to agree to hear the appeal and promptly scheduled arguments for Feb. 8. In a surprising move, Monday’s ruling came less than a month later, which is a significantly faster pace for a court that typically moves at a glacial pace.

In a departure from the norm, Monday’s ruling was not read out from the bench by a single justice. Instead, it was exclusively posted on the court’s website.

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