Speaking with one voice, mostly
It was apparent during the oral argument less than a month ago in the is-Donald-Trump-a-barred-insurrectionist-under-the-14th-Amendment? ballot case that the nine justices of the U.S. Supreme Court were going to unanimously overrule the justices of the Colorado Supreme Court. And they didn’t disappoint, coming to the correct 9-0 conclusion that a state cannot enforce this provision of the U.S. Constitution, only the feds can.
That was enough to end the Colorado case and keep Trump on the Centennial State ballot, where today is the Super Tuesday primary that he’s likely to win. And it also ends the various state-by-state challenges around the country. Both proper outcomes.
While states can use 14th Amendment to forbid “any office, civil or military” on the local and state level to insurrectionists, they cannot exercise that authority over federal offices, such as Congress and the presidency and federal appointive positions.
What the unanimous nine didn’t agree on which feds have the power to use the 14th Amendment to police the ballot. Granted that a determination needs to be made on a federal level, but what federal person or persons? A federal judge? A federal agency? Congress? It’s a question that didn’t need to be addressed in the Colorado case, but the five men on the high court went ahead and said it was Congress, which needs to write a law for this situation.
The four women on the court said that was unnecessary, that the court should have just stopped at saying that the 14th Amendment is about federal power being imposed on the states, not the other way around, with states imposing on federal matters like presidential and congressional elections.
The narrow majority of the five Mr. Justices wrote that Congress should pass a law about this, but it must be before the November election. With the Republicans in control of the House, that won’t happen, but say the Democrats win the House and Senate this fall.
The new Congress starts on Jan. 3 and they could then pass a law, blocking Trump — should he have won — from being certified on Jan. 6 and being inaugurated on Jan. 20. That would be a disaster and the court said no to that nightmare scenario.
The best outcome is that Trump doesn’t win. And then the new Democratic Congress could bar him for 2028, remedying the error of the Senate for failing to convict him during his impeachment trial in 2021 after the sacking of the Capitol by his mob and forbid him any future office.
What none of the nine justices did was do anything to counter the finding of the Colorado courts that Trump is an oathbreaking insurrectionist. Nor did they address the trickier notion that the presidency is the sole public office for which the 14th Amendment’s prohibition doesn’t apply, which is what the Colorado trial judge found and the Colorado high court waved away.
Should someone try another, federal approach, to use 14th Amendment, such as suing in federal court, yesterday’s decision has preemptively shut it down, saying that the Congress must act. As that is how the majority was going to rule, they have saved everyone the time and effort of trying.
Assuming he’s the GOP nominee, Trump will be on 50 state ballots. Stopping him will depend on the American people.