March 5, 2024

Trump on the Ballot

The Supreme Court on Monday ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy, against candidates for federal offices.” SCOTUSblog

“Though the justices unanimously agreed with the result, the three liberal justices, as well as conservative Justice Amy Coney Barrett, said the court's opinion decided more than what was necessary to resolve the case by specifying that Section 3 can be enforced only through federal legislation. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson objected to the majority's ‘gratuitous’ decision to announce rules limiting the way Section 3 can be enforced in the future.” Reuters

Here’s our previous coverage of the case. The Flip Side

See past issues

From the Left

The left is divided about whether Trump should be disqualified, and criticizes the majority opinion.

“It is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is ‘self-executing’ (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement…

“Why, the liberals wondered, did the majority create ‘a special rule’ for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: ‘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.’”

Mark Joseph Stern, Slate

“The name of US Representative Maxwell Alejandro Front, the Florida Democrat who is the youngest member of Congress, cannot be placed on a presidential ballot this year because, at 27, he does not meet the age requirement. No congressional resolution or court ruling is necessary to settle the issue. Reality is sufficient. And the name of Barack Obama cannot be placed on a presidential ballot this year because, as someone who has already served two full terms in the Oval Office, he is not allowed to bid again…

“Similarly… a good-faith reading of the Constitution would find that the name of Donald Trump cannot be placed on a presidential ballot this year. That’s because, as the January 6 Committee determined, ‘President Trump or his inner circle engaged in at least 200 apparent acts of public or private outreach, pressure, or condemnation, targeting either State legislators or State or local election administrators, to overturn State election results.’”

John Nichols, The Nation

Some argue, “The fundamental problem with the 14th Amendment challenges is that the issue has never been about whether Trump did or did not engage in insurrection. It’s about who gets to decide — and how. Pro-disqualification advocates insisted it was up to the individual states, though they could never quite articulate exactly who in each state gets to decide (Legislatures? Secretaries of state? Judges? Juries?) and by which specific process or burden of proof…

“The proposed solution was essentially this: Let’s have each state make up its own process on the fly and then apply it retroactively to Trump — an approach that, if accepted, would violate a different section of the 14th Amendment, the one about due process… [These issues] were apparent all along.”

Elie Honig, New York Magazine

From the Right

The right applauds the ruling, highlighting that the justices unanimously rejected the effort to disqualify Trump.

The right applauds the ruling, highlighting that the justices unanimously rejected the effort to disqualify Trump.

“The term ‘insurrection or rebellion’ clearly applied to the Confederacy. The court held that applying it in other contexts requires going through the basic process of constitutional administration: Congress passes laws enacting standards and procedures for enforcing Section 3, the executive branch brings cases under those laws, and the judicial branch applies the laws through pretrial motions, trials and appellate review…

“The decision notes that Congress has enacted statutes against insurrection. If Mr. Trump is convicted of that offense, he would be disqualified from the presidency and could be removed from the ballot. But he hasn’t even been charged with insurrection, so only the voters can keep him out of office.”

Adam J. White, Wall Street Journal

“Letting states enforce Section 3, the Court explains, would create a ‘patchwork’ of electoral policies that would ‘‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole.’… This peril is particularly grave for the Presidency, which ‘represent[s] all the voters in the Nation,’ the Court stresses…

“The ruling is shrewd in avoiding the fraught political question of whether Jan. 6 was an insurrection, and whether the President qualifies as an ‘officer of the United States’ under Section 3. Deciding these questions wasn’t necessary to decide the case. The unanimous judgment will reassure the public and shows how out of line the Colorado Supreme Court was.”

Editorial Board, Wall Street Journal

“Congressional Democrats want the option of seeking to disqualify Trump post-election and pre-inauguration under Section 3. That would have put the Supreme Court squarely in the position of deciding whether he could become president — the media-Democrat complex would have declaimed that it was the conservative justices, not the voters, who elected Trump. A majority of the Roberts Court wanted no part of such a scenario.”

Andrew C. McCarthy, National Review

“Yes, Sotomayor, Kagan and Brown Jackson dissented on [that] part of the ruling, but as Justice Amy Coney Barrett noted in her own opinion on the same issue, ‘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.’ It’s also a message for all who don’t want Trump returned to office: Stop reaching for legal gimmicks, and focus on beating him at the polls. You keep claiming to believe in democracy — start acting that way.”

Editorial Board, New York Post

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