The Supreme Court Spanks The Colorado Court Over The Fourteenth Amendment
The "Insurrectionist" Claim Is Legally Dead
Without directly saying as much, the Supreme Court today drove a legal stake through the heart of the many and multitudinous claims that Donald Trump is an “insurrectionist”.
The Supreme Court ruled Monday that former President Trump may not be disqualified from appearing on state ballots despite allegations he “engaged in insurrection” after losing the 2020 election and thereby should be barred under the Constitution from holding office.
Reversing a ruling by Colorado judges, the high court said states do not have the authority to interpret the post-Civil War 14th amendment or use it to remove from the state ballot a presidential candidate.
It was an unsigned, unanimous decision.
The per curiam decision effectively ends all 14th Amendment shenanigans to keep Donald Trump of any state’s ballot, and so by natural extension effectively ends any sort of relevancy to the claims that Donald Trump engaged in insurrection or incited insurrection in regards to events surrounding the J6 protest-cum-riot.
Court watchers noted that the ruling not only reversed the Colorado Supreme Court, but it explicitly noted that the only body able to enforce the 14th Amendment’s insurrection clause is the United States Congress.
But before disqualifying someone under Section 3, the justices observed, there must be a determination that the provision actually applies to that person. And Section 5 of the 14th Amendment gives the power to make that determination to Congress, by authorizing it to pass “appropriate legislation” to “enforce” the 14th Amendment. Nothing in the 14th Amendment, the court stressed, gives states the power to enforce Section 3 against candidates for federal office, nor was there any history of states doing so in the years after the amendment was ratified.
With the Congress being the sole arbiter of who is and is not an “insurrectionist”, all of the state-level challenges and claims are effectively nullified by this ruling, including the latest ruling by an Illinois judge.
No state agency or authority may apply the 14th Amendment’s insurrection clause to candidates for federal elective office. That is the unanimous decision of the Supreme Court.
While the Court’s primary conclusion was absolutely the correct one, and we should be very glad for it, some of the Court’s reasoning was unnecessarily obscure. Most specifically, the Court concluded that some sort of “proceedings” were necessary to properly adjudicate a claim that an individual is an insurrectionist and thus disqualified from federal elective office under the 14th Amendment1.
Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized, to “ ‘ascertain[ ] what particular individuals are embraced’ ” by the provision. App. to Pet. for Cert. 53a (quoting Griffin’s Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). Chase went on to explain that “[t]o accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable.” Id., at 26. For its part, the Colorado Supreme Court also concluded that there must be some kind of “determination” that Section 3 applies to a particular person “before the disqualification holds meaning.” App. to Pet. for Cert. 53a.
However, this bit of legalese fails to note that the Fifth Amendment demands due process any time the courts and/or the government seek to circumscribe a person’s liberty.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The level of introspection applied to the Fourteenth Amendment’s provision that enforcement mechanisms are left to the Congress to define and implement was also bizarrely convoluted and contorted.
The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.” Cong. Globe, 39th Cong., 1st Sess., at 2768.
Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legislation less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding office” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualification, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by §5 of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 385 (1982); see 16 Stat. 143–144.
This seems excessively pedantic, given that the Congress already has specified the nature of the proceedings to be held, by enacting a federal insurrection statute2.
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
No additional action by Congress is necessary, for Congress has already passed the necessary legislation—a point acknowledged albeit tangentially by the Court.
Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383
Congress has in fact passed multiple pieces of legislation since 1868 to address enforcement of the key provisions of the Fourteenth Amendment—a fact that has been curiously overlooked across the arc of the “insurrectionist” narrative.
Unsurprisingly, Democrats in Congress are taking the Supreme Court literally and are preparing legislation to arbitrarily declare Donald Trump an “insurrectionist”.
Representative Jamie Raskin (D-MD) said Tuesday on CNN’s “Newsroom” that the Supreme Court unanimously overturning a Colorado Supreme Court ruling that disqualified former President Donald Trump from the ballot was SCOTUS punting.
Raskin said, “The, court didn’t exactly disagree with it. They just said that they’re not the ones to figure it out. It’s not going to be a matter for judicial resolution under Section Three of the 14th Amendment, but it’s up to Congress to enforce it. I disagree with that interpretation just because the other parts of the 14th Amendment are self executing. People can go to court and say that something violates equal protection, even if there’s not a federal statute that allows them to do that. But any event, the Supreme Court punted and said, it’s up to Congress to act.”
He continued, “And so I am working with a number of my colleagues, including Debbie Wasserman Schultz and Eric Swalwell, to revive legislation that we had to set up a process by which we could determine that someone who committed insurrection is disqualified by section three of the 14th Amendment and the House of Representatives already impeached Donald Trump for participating in insurrection by inciting it. So the House has already pronounced upon that, and there was also a 57 to 43 vote in the Senate. The question is whether speaker Mike Johnson would allow us to bring this to the floor of the House?”
Raskin, however, overlooks the fact that the Senate vote acquitted Donald Trump of incitement of insurrection—the only time Donald Trump has ever been formally charged in any venue with insurrection or incitement of insurrection, he was acquitted. On mere presumption of innocence alone, legally Donald Trump cannot possibly be guilty either of insurrection or its incitement.
Raskin’s proposed bill, however, highlights a grave shortcoming of the Supreme Court’s ruling: they failed to acknowledge that the “kangaroo court” proceedings by which the Colorado courts came to bar Donald Trump from the ballot fell way short of the Fifth Amendment’s requirement for due process. Yes, Colorado had a trial of sorts pursuant to the litigation filed to specifically kick Donald Trump off the ballot, but at no time were the court proceedings in Colorado undertaken to adjudicate a charge of insurrection under the federal insurrection statute.
Absent due process, the efforts to exclude Donald Trump from the 2024 ballot have, as I have stated before, constituted illegal and unconstitutional bills of attainder, which are expressly prohibited to the States in Article I Section 10 of the Constitution:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Absent a trial in a court of competent jurisdiction, Donald Trump cannot be considered an insurrectionist, and any effort to peremptorialy declare him an insurrectionist becomes by definition, a bill of attainder, which is prohibited to all levels of government by the Constitution.
a legislative act that imposes punishment without a trial
We should note that while Colorado held a brief “trial” to hear the original lawsuit to disqualify Donald Trump, Maine did not even do that.
While the Supreme Court did not reference Maine’s efforts at all in their opinion, by explicitly identifying the United States Congress as the sole entity tasked with enforcing the Fourteenth Amendment, they did take aim at both the Maine effort and the recent Illinois effort by implication. Both efforts are absolutely nullified by the Supreme Court’s ruling.
Yet by failing to address the impermissibility of bills of attainder, the Court seemingly left open the possibility that Congress could craft a statute to disqualify Trump from running for President, thus leaving Congressman Raskin and his partners in swamp slime with the impression that a bill specifically targeting Donald Trump can be enacted.
There are two reasons why Raskin is wrong.
In addition to the Constitutional prohibitions against bills of attainder, the reality is that Congress has already passed the necessarily legislation: 18 USC §2383. The Supreme Court specifically reference this statute in describing the mechanisms that Congress has already passed to enforce Section 3 of the 14th Amendment.
Raskin is in error because there is no need for a specific item of legislation targeting Donald Trump. There is a need for an impeachment, an indictment, and a trial over a federal charge of insurrection. If the evidence is there that Donald Trump engaged in insurrection or the incitement thereof, then the Democrats should have impeached him, indicted him, and then tried him for the offense.
Even if one disagrees with my particular thesis that even a former President of the United States should be impeached before seeking an indictment regarding his activities during his time in office, we still are left with the reality that Donald Trump has not been charged with insurrection to date. Once again, on mere presumption of innocence alone, with not even an indictment, much less a conviction, Donald Trump legally speaking cannot possibly be an “insurrectionist”.
I will emphasize that, while the Court’s reasoning is somewhat less than for what I had been hoping, the reasoning that it did elucidate completely rejected the confabulations and Constitutional contortions of all of the “experts” who had supported the Colorado and Maine efforts to kick Trump off the ballot.
John Dean, Michael Luttig, and all the rest of the legal eagles who pronounced these state efforts as “solid” were left with Constitutional egg on their faces today.
Did Donald Trump participate in or incite an insurrection on January 6, 2021? We cannot make that claim because he has yet to be charged with such an offense.
As the Supreme Court noted, Congress has already passed enforcing legislation to address Section 3 of the Fourteenth Amendment—18 USC §2383. Congress has already made insurrection a federal crime and barred those found guilty of insurrection from holding federal office.
If the Democrats believe Donald Trump engaged in insurrection, let them file charges, investigate, secure relevant evidences, and adjudicated the matter properly in a federal court. If the Democrats are convinced Donald Trump engaged in insurrection, let them take the time to convince me, and in the proper forum—that of a criminal courtroom.
The Democrats, like Jack Smith, decline to do this. They decline to charge Donald Trump (or any of the J6 protesters) with insurrection under 18 USC §2383. That is what due process for anyone believed to be guilty of insurrection looks like.
Instead, they wish to pass yet another illegal and unconstitutional bill of attainder against Donald Trump. They wish to circumvent the law again, they wish to circumvent the Constitution again.
The Supreme Court properly spanked the Colorado State Supreme Court for seeking to disqualify Donald Trump from the 2024 election without regard to the actual text of the Constitution or the Fourteenth Amendment. Unfortunately, they failed to use a big enough Constitutional paddle to dissuade others from pursuing the same illegitimate, illegal, unconstitutional ends.
Which means the battles to disqualify Donald Trump from the 2024 election will continue, the Constitution and the rule of law be damned.
Trump v Anderson 601 US ____ (2024)
This ruling restored my sinking hope!
So, Congress is going to have to formally prove that there was an insurrection, in order to sink Trump. If they go down that road, Congressman Higgins’ findings of the involvement of 200+ FBI agents on J6 will come out in court, plus the other damning evidence of entrapment, etc. Peter, can you see a series of plausible legal steps by which the J6 defendants could have their sentences reduced or overturned? The severity of their punishment was based upon an implied existence of ‘insurrection’ (even though none of them have actually been charged with insurrection). If it is legally proved that there was, in fact, no insurrection, is there some vindication for them?