Federalism Takes a Hit at the U.S. Supreme Court

Was it a necessary hit?

On Monday, the U.S. Supreme Court unanimously decided that Colorado cannot remove Trump from the state's Republican primary ballot because states do not have the authority to do so under Section 3 of the Fourteenth Amendment, the post-Civil War clause of the federal constitution that bars from office any individual who has engaged in insurrection or rebellion against the United States. Trump is currently facing charges related to the riot at the Capitol. The majority ruled that Congress has the authority to enforce Section 3. On this point, three justices were dissenters.

The Court argued that allowing states to enforce this provision could lead to inconsistent and fragmented approaches to federal elections, undermining the national character of federal office qualifications. The majority wrote:

"Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations. Some states might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while others might require a heightened showing. Certain evidence (like the congressional Report on which the lower courts relied here) might be admissible in some states but inadmissible hearsay in others. Disqualification might be possible only through criminal prosecution, as opposed to expedited civil proceedings, in particular states. Indeed, in some states—unlike Colorado (or Maine, where the secretary of state recently issued an order excluding former President Trump from the primary ballot)—procedures for excluding an ineligible candidate from the ballot may not exist at all. The result could well be that a single candidate would be declared ineligible in some states, but not others, based on the same conduct (and perhaps even the same factual record)."

The dissenting opinions, while agreeing with the outcome that states cannot enforce Section 3 in this manner, criticized the majority for addressing questions beyond the scope necessary to resolve the case. They argued that the Court should have limited its decision to the specific issue of state enforcement against presidential candidates, without dictating how federal enforcement of Section 3 should proceed or precluding other potential means of enforcement.

The majority justified their decision by citing Section 5 of the 14th Amendment, which states that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The majority interpreted this article to mean Section 3. However, the dissenting justices, on the question of enforcement, argued that Section 3, simply stating that insurrectionists cannot hold federal office, effectively makes the 14th Amendment self-executing. No “appropriate legislation” is required. It just is!

So, all the justices agreed that Trump cannot simply be removed from the ballot because it is not the responsibility of states to enforce Section 5. The majority took pains to argue that it is Congress' responsibility to enforce Section 3. Meanwhile, the dissenting justices declined to explicitly delegate enforcement power to anyone. It is a question they believed was not necessary to address in this case.

The struggle seems to be relying on Congress, a democratically elected body, to somehow craft legislation that standardizes enforcement against insurrectionists, or presumably federal judges, who are unelected, to determine enforcement. Or, as George Conway attempted to argue in The Atlantic, states have the authority to disqualify insurrectionists for state office because when Section 3 was drafted in 1866, it allowed Congress to lift any restriction on an insurrectionist seeking elected office with a two-thirds majority of each chamber — which implies that other institutions, like states, had the power to bar insurrectionists from seeking office, be it federal or state. It is an interesting case against the majority’s decision. However, Conway does not seem to address the consequence of other states, perhaps conservative-leaning states, removing Democratic candidates from the ballot for, say, technicalities or subjectively oath-defying actions. Amusingly, despite making a case that bolsters federalism, Conway goes on to lament the “dreaded patchwork” of election laws that will endure despite the Supreme Court’s ruling.

The first and rather banal observation here is that if the partisan shoe were on the other foot, one could ever so easily see the liberal justices and Democrats promoting an interpretation of the Constitution that reflexively empowers Congress to draft a uniform and arguably workable law, as Congress attempted to do with the federalization of election laws three years ago. And one could just as easily see the conservative justices, as they tend to do, promoting an interpretation that empowers states to hold to account those either seen as insurrectionists or disloyal to their oath of office. In this sense, the case and related story are boring.

But one question that came back to me after reading the majority’s opinion was, “So what?” So what if states end up removing presidential candidates from the ballot based on differing legal justifications? Would every state do that? Would enough states do that to impact the election? Couldn’t the election just go to the House of Representatives if no candidate attains a majority of Electoral College votes? Would the result of multiple states, perhaps a dozen or more, removing either major party candidate from the ballot be a direct path toward the end of democracy — or would the matter be more complicated? Heated in the moment but not some kind of existential nightmare.

Ultimately, I think state control of federal elections, combined with the Electoral College, provides sufficient safeguards against efforts and reforms seeking to further adversely nationalize our politics, and so in this respect, the central question is one I tend to think the Court made with prudence. But this case did make me think of how our national institutions — be it our political media, the Supreme Court, or Congress — are so reflexively fearful of that “dreaded patchwork,” of variation, of incongruence, of that lack of trust that incentives would arise, as they so often do in ways we can’t see at the outset, that resolve whatever “constitutional crisis” that emerges from an epidemic of ballot removal.

So much from policymaking to national identity and culture is seeking to be obsessively compulsively manicured like a suburban lawn by the most zealous among us. It prompts the question of how committed these institutions are to retaining American democracy, not as the ideal either side wants it to be, but the necessarily complex and decentralized one we have now. An ideology that seeks to view the patchwork that constitutes our union as a defect, explicitly or otherwise, is one insufficiently skeptical of the kind of authoritarian characters it seeks to constrain.

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