We suggest that too little attention has been paid to a significant element of the Supreme Court’s recent ruling that Section 3 of the 14th Amendment – i.e., the insurrection clause – did not authorize states to bar Donald Trump from running in state primaries involving federal elections or from serving in federal office. In fact, the enforcement language of the amendment on that issue refers exclusively to “two-thirds votes of each House” of Congress. So, it would be hard to come away with any conclusion that the language empowers states to deal with federal electoral matters involving “insurrectionists.” And of course, the Court’s unanimous vote on that issue should tell you that there should have been little doubt about the outcome except, perhaps on the part of some wishful thinking, die-hard “never-Trumpers.”
But not enough attention has been paid to what five of the Justices had added to the mix, beyond the part about the lack of state authority. They went on to say that Congress could also not act without detailed federal legislation regarding Section 3 in place, and to tell Congress exactly how it had to go about any enforcement action. However, the issue of a substantive need for enabling legislation was not addressed by the other Justices.
Justice Amy Coney Barrett summed it up by pointing out in her concurring opinion that “I agree that states lack the power to enforce Section 3 against presidential candidates…. But she went on to add, “That principle is sufficient to resolve this case, and I would decide no more than that.”
And three other Justices said pretty much the same thing in their concurring opinions. So it seems to us that the Justices who went further – 5 of the 6 Conservatives on the Court – may well have been indicating that they were looking to discourage any efforts to pass enabling legislation and proceed with efforts to remove a reelected “insurrectionist” president Trump from office by complicating the process.
If nothing else, that effort would increase the likelihood that the attendant tumult of efforts to pass the legislation would keep the insurrection issue before voters in the run-up to the 2024 presidential election.
And this may be a life line some of the Justices were trying to throw Donald Trump.
