As expected, the Supreme Court is keeping Trump on the Colorado ballot. It was a unanimous decision [maybe not; see below] that I have just given a quick skim. The gist of it seems to be that only the U.S. Congress can determine if a presidential candidate is disqualified under the 14th Amendment insurrection clause. States may disqualify candidates for state offices any way they like, but not a national office.
NBC News —
The court said the Colorado Supreme Court had wrongly assumed that states can determine whether a presidential candidate or other candidate for federal office is ineligible.
The ruling makes it clear that Congress, not states, has to set rules on how the 14th Amendment provision can be enforced against federal office-seekers. As such the decision applies to all states, not just Colorado. States retain the power to bar people running for state office from appearing on the ballot under section 3.
“Because the Constitution makes Congress, rather than the states, responsible for enforcing section 3 against all federal officeholders and candidates, we reverse,” the ruling said.
By deciding the case on that legal question, the court avoided any analysis or determination of whether Trump’s actions constituted an insurrection.
I’m sure there will be all kinds of learned legal analyses of this decision as the day goes on. I’ll keep an eye out for anything interesting.
Update: Here’s something interesting. At Slate, Mark Joseph Stern writes The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster.
Five justices—Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists—in just a few paragraphs of sparse reasoning—the insurrection clause cannot be enforced against office seekers. It derives this conclusion from two primary sources: “Griffin’s Case,” an 1869 opinion written by Chief Justice Salmon Chase, acting as a circuit judge, and Section 5 of the 14th Amendment, which says, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
The three liberal justices wrote a separate opinion, authored jointly, to explain why this reasoning fails. First, Griffin’s Case was, until Monday, widely discredited as the political handiwork of a chief justice plotting to run for the presidency as a great conciliator between North and South. It is “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge,” as the liberal justices wrote. Moreover, Sen. Lyman Trumbull, an author of the 14th Amendment, resisted the logic of Griffin’s Case, declaring that while congressional legislation might provide a “more efficient and speedy remedy” for disqualifying a candidate, it is the 14th Amendment itself that “prevents a person from holding office.”
Second, it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “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.”
These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion. By blocking off these pathways, the liberals wrote, the majority “foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.” They continued:
Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.
Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority’s overreach but declining to say more because “the court should turn the national temperature down, not up.” So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.
In related news, Allen H. Weisselberg is expected to plead guilty to felony perjury today.
Recommended read by Will Bunch at the Philadelphia Inquirer: Mitch McConnell is the arsonist who set America on fire and ran away.
At Rolling Stone, Trump’s White House Was ‘Awash in Speed’ — and Xanax.
In January, the Defense Department’s inspector general released a report detailing how the White House Medical Unit during the Trump administration distributed controlled substances with scant oversight and even sloppier record keeping. Investigators repeatedly noted that the unit had ordered thousands and thousands of doses of the stimulant modafinil, which has been used by military pilots for decades to stay alert during long missions.
The report didn’t say why so many of those pills had been given out. But for many who served in the Trump White House, the investigation highlighted an open secret. According to interviews with four former senior administration officials and others with knowledge of the matter, the stimulant was routinely given to staffers who needed an energy boost after a late night, or just a pick-me-up to handle another day at a uniquely stressful job. As one of the former officials tells Rolling Stone, the White House at that time was “awash in speed.”
Here’s what the Mayo Clinic says about modafinil. I’ve long suspected Trump was taking some kind of stimulant, and this could be it. It can cause mental confusion.