By States’ efforts to disqualify former president Donald Trump from their primary ballots for “engaging in insurrection” have come to an end, with the Supreme Court ruling that states cannot enforce the 14th Amendment for federal candidates.
The ruling in Trump v. Anderson reverses the Colorado Supreme Court’s disqualification of Trump. It also means Trump’s disqualifications in Illinois and Maine won’t be allowed to stand.
The overall judgment that Colorado could not disqualify Trump was unanimous. But four justices took issue with how far the ruling went in saying Congress must pass legislation for the 14th Amendment to be enforced against a federal candidate.
The ruling says that a state can’t disqualify a presidential candidate, in part because it doesn’t have that power and in part because having such power would lead to chaos.
“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,” the ruling says.
The ruling notes that allowing the states such power could lead to a “patchwork” approach, in part because states handle such matters in varying ways.
“An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times,” the ruling says. “The disruption would be all the more acute — and could nullify the votes of millions and change the election result — if Section 3 enforcement were attempted after the Nation has voted.”
It added: “Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the Inauguration.”
Five justices went further, ruling that the 14th Amendment is not “self-executing” — that it needs Congress to enforce it.
While Section 3 of the 14th Amendment bars people who have “engaged in insurrection” from holding office, the ruling cites Section 5 as limiting states’ power. Section 5 says that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
“Congress’s Section 5 power is critical when it comes to Section 3,” the ruling says.
The ruling did say that states may, however, disqualify someone from holding state office under the 14th Amendment.
The ruling provides precisely zero clarity on the underlying issue of whether Trump actually engaged in insurrection — neither ruling that he did nor that he didn’t, or even engaging in discussion about it.
Both a Colorado district court and the Colorado Supreme Court ruled that Trump had engaged in insurrection, citing both his Jan. 6, 2021, speech that preceded the attack on the Capitol and his lack of immediate action when it began.
The state Supreme Court said Trump’s “actions constituted overt, voluntary, and direct participation in the insurrection.”
A judge in Illinois and Maine’s secretary of state also found that Trump engaged in insurrection, and several other judges have come close to accusing Trump of that.
The judgment is one thing; the scope of the ruling is another. Five justices went further than the full court by declaring that Congress must enforce the insurrection clause.
The three justices from the court’s liberal wing strongly objected to this, and Justice Amy Coney Barrett objected less forcefully. Each of the four indicated that the court need not have gone that far.
The concurrence from Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson is full-throated on this point.
They agreed that allowing Colorado to disqualify Trump would lead to “chaos,” but they disagreed that congressional enforcement was “critical” to the 14th Amendment. And they suggested the court’s majority was insulating both Trump and other alleged insurrectionists.
They said the five justices “decide novel constitutional questions to insulate this Court and petitioner” — Trump — “from future controversy.”
“By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” the three justices wrote.
The three justices began their non-dissent dissent by quoting Chief Justice John G. Roberts Jr. When Roberts agreed with the court’s judgment in Dobbs v. Jackson in 2022 but wanted to stop short of overturning Roe v. Wade, Roberts said, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
Barrett’s concurrence was much briefer. She did not join in the section in which the majority calls Section 5 “critical” to Section 3. That means she effectively agreed that states can’t disqualify federal candidates, though she declined to embrace the idea that only Congress can.
But she seemed to take issue with the tone of the three liberal justices’ concurrence, saying that “this is not the time to amplify disagreement with stridency.”
Notably, none of these disagreements is labeled a dissent. It’s clear the court wanted to speak unanimously — even as it was not unanimous on some key issues.
The fact that the justices wanted to maintain at least the appearance of unanimity is important. They will be taking up other divisive Trump-related issues, and they recognize the importance of at least looking as if they’re speaking with one voice.
But the price of that purported unanimity is that it leaves the matter somewhat unresolved.
By not weighing in on whether Trump engaged in insurrection, that remains open to interpretation — and specifically, Congress’s. What if Trump won in November, for instance, but Democrats controlled both chambers of Congress and moved to disqualify him?
The ruling also creates some tension with other writings of the court, in which it found that other Reconstruction-era amendments — one of which includes similar language to Section 5, and even the 14th Amendment itself — were self-executing.
In South Carolina v. Katzenbach in 1966, the court ruled that the 15th Amendment was self-executing. That amendment states, “The Congress shall have power to enforce this article by appropriate legislation.”
The court even previously said, in 1883 in the Civil Rights Cases, that the 14th Amendment “is undoubtedly self-executing, without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.”
The three liberal justices in Monday’s Trump v. Anderson opinion wrote that the ruling “simply creates a special rule for the insurrection disability in Section 3.”
The ruling also invites Trump to continue arguing that liberal activists have gone too far in trying to take him down in the courts. (Though it’s worth noting the Colorado suit was brought by Republican and unaffiliated voters.)
Shortly after the ruling was handed down, Trump quickly scheduled a news conference at Mar-a-Lago.
