Before the Supreme Court ruling yesterday that forced Colorado to put Trump back on its primary ballot, I thought two things about the case:
- If you look at the language of the Fourteenth Amendment, there was a strong case that Trump is not eligible to run for president.
- There was virtually no chance that the Supreme Court would find Trump to be ineligible to run for President.
I still think that #1 is true, and like plenty of others have mentioned, the per curiam decision the Court issued yesterday really doesn't make any sense. The opinion said that the exclusion clause only applies if Congress passes a law giving teeth to the exclusion, but the language of Section 3 of the Fourteenth Amendment already states explicitly what role Congress has in deciding ineligibility, and it is not what the Court just ruled. The text of that section says that if someone is excluded "Congress may by a vote of two-thirds of each House, remove such disability." If the drafters of the Amendment intended Congressional action to be necessary to exclude someone in the first place, they would have said so, just as they explained how the "disability" can be removed.
But I do think if the Supreme Court went the other way, there would be huge potential for abuse. If Trump was excluded from Colorado and a handful of other state ballots because he engaged in insurrection, red states would immediately exclude Biden on some bullshit theory that he committed "treason" because (mumble) (mumble) border, or something. The Texas Lt. Governor has already said as much. Let's face it, a lot of state leaders suck and giving the carte blanche to knock anyone they want off the ballot by just declaring them an insurrectionist is ripe for abuse.
If the Court gave a shit about the actual Constitution they could have issued a much more narrow ruling. Like, for example, they could have ruled that you can't be excluded for "insurrection" unless you have been convicted of the crime of insurrection. That would at least be consistent with what the Constitution says. It would also mean that Trump would remain eligible to run for President. But that's more because Merrick Gartland didn't immediately bring charges or appoint a special prosecutor at the beginning of the Biden Presidency. It wouldn't be because the Supreme Court is terrible. The ruling we actually got is because the Supreme Court is terrible. There's almost no opinion these days that isn't a scream for Court reform.
