A few days before Christmas, the Colorado Supreme Court made the remarkable decision of forbidding voters from having the Republican frontrunner—former President Donald Trump—listed on their ballots. According to this state court, not only had Trump personally “engaged” in an “insurrection,” triggering Section 3 of the Fourteenth Amendment (that does not seem to apply to Presidents), but individuals in Colorado were empowered to make this decision in the first place.
The decision, and the entire legal process itself, was woefully misguided on multiple fronts.
But you’d never know it from certain commentary. “The Colorado Supreme Court decision is unassailable in every single respect,” said frequent MSNBC commentator, Judge J. Michael Luttig. Other commentators called Trump’s arguments appealing the ruling “absolutely bonkers.”
And yet, today the Supreme Court ruled unanimously that the Colorado Supreme Court was wrong. It took only 13 short pages to rule, which should seriously embarrass not only Colorado but every legal commentator who built this up into the slam-dunk legal issue of our day.
It’s not.
As the Supreme Court explained, the Fourteenth Amendment, ratified in the wake of the Civil War, was designed to diminish states’ authority and hand that authority to the federal government. Section 3 specifically works to disqualify certain rebels from holding a wide variety of offices. But who acts sufficiently badly to bar themselves from office? Who decides? And through what process?
“The Constitution empowers Congress to prescribe how those determinations should be made,” the Supreme Court ruled. “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
Moreover, the Court said, “It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office.” And finally, this type of state-based disqualification of federal officials has never happened before. “Such a lack of historical precedent is generally a telling indication of a severe constitutional problem” with the power asserted by Colorado.
Putting the onus on Congress aligns with history as well. Congress has implemented mechanisms to operate the Fourteenth Amendment. For example, the Enforcement Act of 1870 allowed federal district attorneys to bring civil actions in federal court to remove those holding office in violation of Section 3.
This was not a surprising ruling for anyone who read the briefs or listened to the arguments, Democrat or Republican alike. The problem is, no one does that. We rely on legal experts to give us legal expertise. And Americans who listen to left-of-center news were woefully misled.
That’s problematic. Because when today’s expected 13-page decision comes out, it causes incredible anxiety about the rule of law. “I was told this was impossible! The Court must be rigged!” the public is led to believe, egged on by the wrong commentators like Keith Olbermann, who bemoaned that the Supreme Court, including the “inept” liberal justices, “betrayed democracy.”
The media has lost our trust. Instead of seeking further clicks or swipes at the former President, it would be wise for those in charge to consider the bleak, angry, and dangerous future they are building.