BREAKING, but not surprising...

Analysis: the Disqualification Decision

Well, as expected, the Court today overturned the Colorado Supreme Court decision disqualifying Trump from the Colorado ballot. The Court ruled that states can not unilaterally remove a presidential candidate from the ballot.

BUT…the Court went further…at least five members did…

Five members also announced that disqualification can only happen pursuant to Congressional legislation: “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

As three Justices— Sotomayor, Kagan and Jackson—pointed out, this makes no sense:

First, the text of the disqualification clause itself explicitly negates that implication when, after laying out that “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice-President” if that person engaged in insurrection, it says: “But Congress may by a vote of two-thirds of each House, remove such disability.”

That simple phrase carries two implications:

First, it makes perfectly clear that another body can effect the “disability.”

(As Judge Luttig wrote in a brief: “the words “remove such disability” in the Fourteenth Amendment confirm that the candidate is currently disqualified and will remain disqualified, unless and until there is an affirmative vote by two-thirds of Congress to “remove” that disqualification.”)

Second, the phrase makes clear that it takes 2/3s of Congress to eliminate that “disability.”

But what the five Justices announced today ignores that 2/3s requirement completely—and instead empowers 1/2 of the Congress to block disqualification of an insurrectionist by opposing any legislation to do so.

As Justices Sotomayor, Kagan and Jackson wrote today:

“In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insur- rectionist is disqualified, “Congress may by a vote of two- thirds of each House, remove such disability.” 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.”

So today’s decision guts the entire working of the disqualification clause: from a mandatory “disability” that 2/3s of Congress must overcome, to a “disability” that just 1/2 of Congress can negate by refusing to legislate.

Looks like textualism is optional, when inconvenient, for some justices.

More broadly, Luttig also makes the powerful point that Congress is not a good place to determine disqualification, especially exclusively.

First, as in this case, it’s because they have an egregious conflict of interest. Numerous members are implicated because they were directly involved in January 6 and what came before it. Of course they are not going to disqualify themselves or their colleagues. (The Court has basically protected all of those members who participated with today’s ruling.)

Second, as Luttig writes: “if Congress has unreviewable power over Section 3 disqualifications, as some advocate…that would lack all the safeguards and checks of the rule of law, federalism, and separation of powers. Congress consists of partisan politicians. There would be no requirements for evidence, procedural due process, recusals for bias, or bans on ex parte contacts. Nor any role for the states or another branch of the federal government.

As bad, any exclusive, unreviewable power of Congress to adjudicate non-member disqualifications would go both ways. A bare majority in both houses of Congress could ignore even the clearest of presidential disqualifications—a third presidential term—without any possibility of review by the courts.”…

“Nothing could be more contrary to federalism and separation of powers than giving a bare majority in Congress such partisan power with no possibility of veto or review by this Court.”

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One final note: Justice Thomas was one of the Justices who weighed in on the case, even though his wife was a leading participant/advocate in the days leading up to January 6. His involvement here is as tainted as any moment in Supreme Court history. It’s long past time the other Justices call this out.

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As I wrote the other day, Courts are not going to save our democracy.

It’s on us.

Keep going!