The Supreme Court's decision on Monday redirected the potential chaos surrounding efforts to remove former President Donald Trump from the ballot to Congress, igniting concerns among legal experts about the court leaving open as many problems as it resolved.
All nine justices agreed that states cannot disqualify federal candidates under Section 3 of the 14th Amendment, which prohibits anyone from holding public office who has “engaged in insurrection or rebellion” against the Constitution.
"States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency," the justices concluded. “The patchwork that would likely result from state enforcement would sever the direct link that the Framers found so critical between the National Government and the people of the United States as a whole."
The majority gave the power instead to Congress, saying lawmakers could create the procedure for disqualifying insurrectionists from federal office. This decision has sparked debate among legal experts about whether the lack of clarity in the high court’s ruling has left open the possibility of another January 6.
The five most conservative justices on the court “went off on a gratuitous tangent” and ruled on an issue that they did not have to, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon.
“In fact, these justices made a shambles of the Constitutional disqualification provision – which is really self-executing – and made it virtually impossible in the short-run to disqualify Trump or any other federal official from office if these persons engage in an insurrection like the insurrection on January 6th,” Gershman said. “Ignoring the text of the provision, these five justices ruled that the only way a federal official could be disqualified is if Congress enacts specific legislation for that purpose. This will not happen, as the five justices well know, at least while Trump is the Republican candidate.”
The only way the insurrection clause can be enforced is if Congress enacts specific legislation, according to the ruling by five justices, he explained.
“Here is how Congress will enforce the insurrection clause, allow Trump to run for president, and possibly to incite another insurrection: is by remaining deaf, dumb, and blind and by doing nothing,” Gershman said.
Some experts told Politico that “formal legislation is crucial.” Democrats could insist they have the constitutional right to block Trump from taking office due to his own efforts to avert the transfer of power.
While there is a possibility that Democrats may try to use this clause to keep Trump out of the White House, the more important issue here is that Democrats are “engaging in a fantasy," thinking that they can use this clause instead of relying on the ballot box to prevent another Trump presidency, David Schultz, professor of political science at Hamline University, told Salon.
“For more than a year they have hung their hopes on the Insurrection Clause and the courts,” Schultz said. “This reveals a real distrust or lack of faith they have in the American electoral system and the American people. It also points to how little faith they have in Biden as their candidate to defeat Trump. It is time for them to realize that they need to either get a better presidential candidate or find a way to defeat Trump with votes. The insurrection clause is simply a fairy tale solution based upon questionable and now rejected legal theory and it is not going to save the Democrats.”
Even if Democrats were to challenge Trump's electoral votes based on his disqualification under the 14th Amendment, Article II of the Constitution along with the 12th Amendment limit what Congress can do when it comes to the counting of the electoral votes, Schultz explained.
“Nothing in those two constitutional provisions, the updated Electoral Count Reform Act, or Trump v. Anderson suggests that Congress can simply refuse to count the electoral votes for Trump on January 6, 2024,” Schultz said.
Congress would have to act in advance of that setting to invoke the Insurrection Clause. It cannot use it on January 6 to simply challenge the electoral votes on that date, he explained. Counting the electoral votes and addressing challenges to them are separate matters from declaring Trump an insurrectionist and precluding him from taking office.
The ruling concluded that the judgment of the Colorado Supreme Court could not stand, but did not say one way or the other if Trump had engaged in insurrection. The decision means that the ballots cast for Trump in Colorado's primary will be included in the count and similar challenges regarding his eligibility in other states are likely no longer legally viable.
Shortly after the Supreme Court's Colorado ballot ruling came down, Trump posted on his Truth Social platform: "BIG WIN FOR AMERICA!!!"
The court left open as many problems as it resolved, Schultz said. However, unless Democrats win a majority in both the House and the Senate, there is “no way” they can use the Insurrection Clause to bar Trump from the presidency.
There is a possibility the Democrats could do that if they win majorities in November and then act in January to bar him from office before they count the electoral votes on January 6, he added.
“This is very risky politics and potentially could lead to another January 6 uprising, and it would also fit into the Trump narrative of a stolen election,” Schultz said.
