The U.S. Supreme Court on March 4 unanimously overturned moves by the states of Colorado, Maine and Illinois to disqualify former President Donald Trump from running for president in 2024 under Section 3 of the Fourteenth Amendment, finding that “Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.”
This predictable, 9-0 ruling from the Supreme Court makes it clear that former President Trump will remain on the ballot for president this year and that states, blue, red or otherwise, cannot do a thing about it by unilaterally removing political opponents from the ballot, with the Court stating, “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
Under the Fourteenth Amendment’s Section 3, it states “No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.”
And the reason why the states lack authority to adjudicate Section 3 disqualifications is because the Fourteenth Amendment makes clear in Section 5 that Congress alone has that power: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Despite the unanimous ruling against state enforcement of Section 3 of the Fourteenth Amendment against candidates for federal office and federal office holders, however, there was clearly disagreements by the Court on how the ruling was rendered.
Notably, in concurring with the Supreme Court’s judgment, Justices Sonia Sotomayer, Elena Kagan and Ketanji Brown Jackson complained that the court’s judgment went beyond whether states could disqualify federal candidates in its finding that only Congress could do so via legislation: “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.”
The justices added in their concurrence of the judgment, “We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.”
By worrying that the decision “shuts the door on other potential means of federal enforcement” it appears clear that the three justices were hoping for a split decision that might provide Special Counsel Jack Smith a window of opportunity to bring further insurrection charges against Trump in his current federal criminal cases against the former president, noting “It forecloses judicial enforcement of that provision… The majority further holds that any legislation to enforce this provision must prescribe certain procedures ‘tailor[ed]’ to Section 3… ruling out enforcement under general federal statutes requiring the government to comply with the law.”
Similarly, Justice Amy Coney Barrett complained that the Court’s majority went too far in deciding the case, stating, “I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
The Court’s majority, comprising Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, responded to Barrett, Sotomayer, Kagan and Jackson, stating, “So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.”
The fact is that Congress has always been the body that has created laws that dealt with disqualification under the history of this provision, as the Court noted.
Before the Fourteenth Amendment was ratified in 1868, Congress had already supplied a procedure for disqualifying former Confederate officers and soldiers from running for public office in the First Military Reconstruction Act of 1867. The disqualification required military tribunals, speedy trials and convictions, also ratification of the Fourteenth Amendment in order for states to be readmitted to the Union.
This was enforced in part by the Enforcement Act of 1870, which provided in Sections 14 and 15 for federal prosecutors to bring cases that would remove individuals from holding public office if they had participated in the Confederacy. It was not self-executing, it required convictions.
Section 14 stated, “That whenever any person shall persons hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the of the district attorney of the United States for the district in which such person shall hold office, as foresaid, to proceed against such person… [in] the circuit or district court of the against by United States in such district, and to prosecute the same to the removal of such person from office.” Here, Congress was explicitly holding onto its own power to disqualify its own members, and of states to do the same. Under no reading, however, would this provision have applied to the President, to be removed, since that is covered under impeachment, removal and disqualification as under the Constitution. In this case, officers of the United States, that is, federal employees, could be removed from office if they were later tried and convicted of participating in the Confederacy.
Section 15 provided that upon conviction, a person who had participated in the Confederacy and held public office and was removed, would be guilty of a misdemeanor, imprisoned for no more than a year and fined no more than $1,000.
When it came to removing the former Confederates’ disability of running for public office, that was once again Congress. Congress had already removed political disabilities for 4,616 former Confederates by March 1871. And then, with the Amnesty Act of 1872 to remove all political disabilities “except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses and officers in the judicial, military, and naval service of the United States, heads of Departments, and foreign ministers of the United States.”
And again, in 1896, it was Congress who voted to allow former Confederate officers to rejoin the U.S. armed forces. And in 1898, the Section 3 bar was removed completely by Congress. Every time, this was done by two-thirds votes required of Congress to remove the political disabilities under Section 3.
Particularly, the 1898 act makes clear “[T]he disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.” There are no other acts of Congress barring federal officeseeking. In 1975 and 1978, respectively, Congress even went as far as to posthumously remove the disabilities against Robert E. Lee and Jefferson Davis.
So, during Reconstruction, it was the military districts who would try rebels that were in military captivity. And afterward, if a member of the Confederacy were in the federal civil or armed services, it would be federal prosecutors who would bring a charge and seek conviction and removal of said officers, all under processes Congress established — and, importantly, all of which Congress has repealed.
Meaning, even if federal prosecutors started bringing insurrection cases against Jan. 6 protesters, it would still be up to Congress to re-establish a procedure for disqualification.
And although the ruling never addressed this count, is worth noting that Trump has neither been tried nor convicted in criminal court for the charge of insurrection.
In fact, the House of Representatives impeached Trump for insurrection in 2021, and the Senate acquitted him. That is, Trump was found not guilty of insurrection already, as Senators voting in the negative found he had a First Amendment right to give the speech at the National Mall on Jan. 6, 2021.
Celebrating the news on Truth Social, Trump posted on March 4, “BIG WIN FOR AMERICA!!!”
Trump is right, as it will be the American people, and not the judicial branch who will determine who stands for election, but insofar as it was only a unanimous ruling on the judgment barring states from enforcing Section 3 of the Fourteenth Amendment on candidates for federal office, but technically 5-4 on whether there were other potential means, judicial or otherwise, that Congress had not yet prescribed — again in 1898, Congress removed all disabilities under Section 3 for holding office — the Court has barely prevented further mischief by the Justice Department to test an insurrection charge against Trump at a later time.
For now, barring a realignment of the Supreme Court, it would take an act of Congress to reinstitute disabilities for holding federal office under the Fourteenth Amendment’s Section 3. Even if the Court did not note it, the fact is in the 2021 impeachment of Trump, Congress had every opportunity to disqualify him for insurrection and instead found him not guilty. But somehow, thanks to these concurring and seemingly dissenting opinions by the Court’s minority, this may yet not be the last we hear of this matter.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
