After oral argument in Trump v. Anderson, the only question was whether the U.S. Supreme Court would go 9-0 in reversing the Colorado Supreme Court's split decision to remove Donald Trump from election ballots, or merely 8-1.
Yesterday, in a ruling that should've surprised nobody, we learned that the Justices were unanimous. In an unsigned per curiam ("for the court") opinion, they ruled that "because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse."
The key to the whole thing was not—contrary to some predictions—Griffin's Case, an 1869 opinion by Chief Justice Salmon Chase holding that the ban on those who had engaged in insurrection could not be enforced without congressional action. Chase wrote that opinion while "riding circuit" in Virginia, so it's not binding on the Supreme Court.
No, the important precedent was more recent: the 1995 case U.S. Term Limits v. Thornton, which held that states couldn't add qualifications to federal offices beyond those listed in the Constitution. In that case, the Supreme Court rejected state attempts to limit the number of terms members of Congress could serve. Because federal officers "owe their existence and functions to the united voice of the whole, not of a portion, of the people," the Court ruled there, in a section that the Court quoted yesterday, the power to regulate their qualifications must be specifically "delegated to, rather than reserved by, the States." States can and do disqualify candidates for state office according to state statutes, but they can't meddle with qualifications for federal office.
I'm not sure I agree with U.S. Term Limits—after all, states were only trying to limit the terms of their own representatives in Congress—but apparently the entire Supreme Court does, including Justice Clarence Thomas, who had dissented from the 1995 ruling. But regardless of what anyone thinks of any kinds of qualifications for congressional office, it makes no sense under our system of government for states to create a patchwork of ways for disqualifying presidential candidates. Either someone is qualified to run for president everywhere or, if the appropriate federal actors so determine in the appropriate way, nowhere.
Now, there's disagreement among the Justices over which federal actors can do so, and according to which procedures. The majority says it has to be done by legislation. Justice Amy Coney Barrett in a one-page concurrence that agreed with most of the per curiam opinion and, separately, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, who concurred only in the bottom-line ruling, took no position on that question. That is, four Justices would've left open the possibility that a federal judge could determine someone's eligibility under the 14th Amendment, or perhaps Congress could do it when it certifies the counting of electoral votes, or maybe even the Justice Department could bring an enforcement action directly under the 14th Amendment.
These four have a point. The Supreme Court didn't absolutely need to adopt Griffin's Case and require congressional legislation as the sole method of Section 3 enforcement. If the majority hadn't gone there—and instead stopped at the idea that state officials can't disqualify federal candidates—it would have been a shorter opinion without any separate writings, a true per curiam. But in going further, the majority foreclosed an "inverse insurrection" by members of Congress who might decline to certify Trump's electors come January 6, 2025.
That's why it was prudential that the five Justices did what they did. It would be even better, if wishful thinking in the short term, for Congress to clarify these issues by enacting a new version of the Enforcement Act, which it had passed in response to Griffin's Case but largely repealed in 1948. For one thing, nowhere in modern federal law is "insurrection" even defined!
But regardless, in a polarized time of record-low societal trust in institutions, it's a good thing the decision of whether Donald Trump can return to the White House belongs to voters—not to Colorado's supreme court, Maine's secretary of state, or any other state or local officials.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute. He is also author of the forthcoming Lawless: The Miseducation of America's Elites and writes the Shapiro's Gavel newsletter on Substack.
The views expressed in this article are the writer's own.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
In Colorado Ballot Case, the Supreme Court Got It Right
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05.03.2024
After oral argument in Trump v. Anderson, the only question was whether the U.S. Supreme Court would go 9-0 in reversing the Colorado Supreme Court's split decision to remove Donald Trump from election ballots, or merely 8-1.
Yesterday, in a ruling that should've surprised nobody, we learned that the Justices were unanimous. In an unsigned per curiam ("for the court") opinion, they ruled that "because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse."
The key to the whole thing was not—contrary to some predictions—Griffin's Case, an 1869 opinion by Chief Justice Salmon Chase holding that the ban on those who had engaged in insurrection could not be enforced without congressional action. Chase wrote that opinion while "riding circuit" in Virginia, so it's not binding on the Supreme Court.
No, the important precedent was more recent: the 1995 case U.S. Term Limits v. Thornton, which held that states couldn't add qualifications to federal offices beyond those listed in the Constitution. In that case, the Supreme Court rejected state attempts to limit the........
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