COLORADO SUPREME COURT FLUNKS CONSTITUTION TEST!
STATE OFFICIALS LACK AUTHORITY TO KEEP A PRESIDENTIAL CANDIDATE OFF A BALLOT
By Donald Brockett
SCOTUS decided Trump v. Anderson (Colorado Secretary of State) on Monday, March 4, 2024 because otherwise on Super Tuesday some Colorado voters would have been disenfranchised.
I am quoting extensively from the opinion because the language is important for a correct understanding of constitutional law regarding the issue that is involved. The opinion begins:
PER CURIAM.
A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year’s election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him.
Former President Trump challenges that decision on several grounds. Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.
A per curiam opinion is a decision of the whole Court on which all members agree with the result without identifying the writer of the opinion.
The opinion states:
Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power struck by the Constitution.” … Section 5 confers on Congress “power to enforce” those prohibitions, along with the other provisions of the Amendment, “by appropriate legislation.”
…
The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.” Cong. Globe, 39th Cong., 1st Sess., at 2768.
What I find interesting about the language above is that it would appear five members of the Court support the principle that the provisions of the Constitution are not “self-executing”, otherwise there would have been no need for the language “to pass ‘appropriate’ legislation”. In other words, the purpose of the 14th Amendment, carrying out the provisions of the Civil Rights Act of 1866, was to give the newly freed slaves the same rights as everyone else and if the southern states which had engaged in the civil war would not abide by those provisions Congress could enforce them against those states.
The other part of the language that is interesting is “… subject of course to judicial review”. If the judicial review of the Court were binding, would that not take away the principle of a Republic that the people have a right to govern themselves through their elected representatives rather than be governed by a tyrannical Court?
The per curiam opinion continues:
This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.
…
“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.” Bond v. United States, 572 U. S. 844, 854 (2014). Among those retained powers is the power of a State to “order the processes of its own governance.” Aldenv. Maine, 527 U. S. 706, 752 (1999). In particular, the States enjoy sovereign “power to prescribe the qualifications of their own officers” and “the manner of their election . . . free from external interference, except so far as plainly provided by the Constitution of the United States.”
…
Such power over governance, however, does not extend to federal officeholders and candidates. Because federal officers “‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’” powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States.”… But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.
…
The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.
Again, the language indicates the provisions of the Constitution are not “self-executing”.
The opinion continues with this language:
The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2.1 But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power.
The text of Section 3 reinforces these conclusions. Its final sentence empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house. The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. See Brief for Respondents. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office. But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. Perhaps a State may burden congressional authority in such a way when it exercises its “exclusive” sovereign power over its own state offices. Taylor, 178 U. S., at 571. But it is implausible to suppose that the Constitution affirmatively delegated to the States the authority to impose such a burden on congressional power with respect to candidates for federal office. Cf. McCulloch v. Maryland, 4 Wheat. 316, 436 (1819) (“States have no power . . . to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress”).
…
… Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. It bars persons from holding office after taking a qualifying oath and then engaging in insurrection or rebellion—nothing more. Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3.
…
Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns. “[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.” Anderson v. Celebrezze, 460 U. S. 780, 794–795 (1983) (footnote omitted). But state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President . . . represent[s] all the voters in the Nation.” Id., at 795 (emphasis added).
…
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.
…
For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States. The judgment of the Colorado Supreme Court therefore cannot stand.
All nine Members of the Court agree with that result. Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of Sotomayor, Kagan, and Jackson, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.
The judgment of the Colorado Supreme Court is reversed.
Justices Barrett, Sotomayor, Kagan and Jackson wrote separately stating their opinion that the majority of the Court had gone too far in its opinion and had made statements not necessary for the determination of the question before them.
Justice Barrett wrote separately stating:
… I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that….
Justice Sotomayor, joined by Justices Kagan and Jackson in their separate opinion said:
“What it does today, the Court should have left undone.”
… In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oath breaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case. Yet the majority goes further. Even though “[a]ll nine Members of the Court” agree that this independent and sufficient rationale resolves this case, five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13. Although only an individual State’s action is at issue here, the majority opines on which federal\ actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.
First, notice that Justice Sotomayor’s statement that former President Trump “is an oath breaking insurrectionist” is gratuitous, unnecessary to the holding in the case and is what lawyers refer to as “dicta”, that is the wanderings or meandering of the judge in writing the opinion. She and the fellow judges who supported her argument agree that the only matter to be decided is whether a state officer has the authority to set the conditions for candidates on a federal election ballot. So she violates her own admonition she first states that “What it does today, the Court should have left undone.”
Second, what is also very interesting in the opinions is the disagreement among the justices whether the provisions of the Constitution are “self-executing”. It is important because if one believes they are not “self-executing” then Congress, acting at the will of the people, must enact legislation carrying out its provisions before they take effect. As pointed out above, the majority opinion agrees.
On the other hand, Justices Sotomayor, Kagen and Jackson believe the provisions of Section 3 are “self-executing” and not in need of any congressional legislation because it was included under the 14th Amendment directed at the states to carry out laws passed after the civil war and what the nation wanted imposed on the losing states.
Justice Sotomayor stated:
All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation.
At least the decision of the Court was unanimous in the determination that the state officials had no authority to control provisions of the Constitution relative to federal elections. The decision by a future court relative to the question whether the Constitution is “self-executing” will apparently depend on the makeup of the Court at that time.
What a way to run a railroad!
To read the entire opinion go to https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
Additionally on Monday April 22nd the Court will hear the case of CITY OF GRANTS PASS V. JOHNSON dealing with what can be done with homeless people. On Thursday, April 25th the Court will hear oral arguments in the TRUMP V. UNITED STATES case which deals with presidential immunity.
To listen to oral arguments starting at 10:00 a.m. EDT go to https://www.supremecourt.gov/oral_arguments/live.aspx
Author of “The Tyrannical Rule Of The United States Supreme Court; How The Court Has Violated The Constitution”, available at Ingram Spark and as printed book and an eBook at Barnes and Noble.
© 2023 Donald Brockett Website: donaldbrockettauthor.com
Articles: dcbrockett.substack.com Contact: donsbooks@proton.me
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