Robert Reich: The Most Troubling Aspect Of Monday’s Supreme Court Decision – OpEd

Even though Trump clearly engaged in an insurrection and even though the Constitution clearly bars insurrectionists from holding elected office, the Supreme Court Monday ruled that Trump will remain on the ballot anyway.

With the Super Tuesday primaries now underway, all nine justices agreed that states (in this case, Colorado) cannot decide to keep Trump off the ballot under Section 3 of the 14th Amendment — which bars anyone who has sworn an oath to the Constitution and yet participated in an insurrection against the United States from holding office. They agreed that allowing states to make such decisions would lead to a patchwork of ballots, undercutting federal authority.

But this may not be the most troubling aspect of their decision over the long term. The five justices in the majority went further, ruling that Section 3 could only be enforced by Congress. They rested their argument on Section 5 of the 14th Amendment, which provides that Congress shall pass “appropriate legislation” to enforce the Amendment — such as, for example, procedures to identify which individuals should be disqualified under Section 3. And Congress has not done so. 

But requiring that Congress first pass such legislation would prevent the federal government’s own Justice Department from bringing a suit alleging that someone should not be allowed on a ballot because they participated in an insurrection. 

It would in effect shield any future insurrectionist candidate whose party controls at least one chamber of Congress and therefore would not enact such legislation.

Justices Sotomayor, Kagan, and Jackson were also rightfully concerned that the majority’s decision could be used to prevent the Justice Department or any aggrieved plaintiff from enforcing other provisions of the 14th Amendment — such as Section 1, which prohibits states from making or enforcing laws that “abridge the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law” or deny them “equal protection of the laws.”

Recall that these 14th Amendment provisions have been bulwarks against states that have discriminated against Black people, against LGBTQ+ people, and against women. The due process clause of the 14th Amendment was the foundation for Roe v. Wade. 

But under the majority’s view of how the 14th Amendment should be enforced, Section 5 might first require Congress to pass “appropriate legislation” to identify which defendants should be prosecuted under Section 1, before the Justice Department or any plaintiff could act against a state that’s abridging people’s rights. 

States charged with violating the privileges and immunities clause, or denying people due process of law, or denying their citizens the equal protection of the law will almost certainly use today’s ruling in attempts to shield themselves from federal prosecution.

By the way, Clarence Thomas should never have participated in the case, given his obvious conflicts of interest. His participation makes the Supreme Court’s recently adopted “ethics” guidelines look like the sham they are.

This article was published at Robert Reich’s Substack