INTERVIEW — SCOTUS to States: It’s Not Your Decision

By Reuvain Borchardt

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, discusses the Supreme Court ruling that unanimously struck down an attempt by several Colorado voters to remove Donald Trump from the ballot based on Section 3 of the 14th Amendment.

Section 3, which was adopted after the Civil War to prevent former officeholders who had joined the Confederacy from returning to government, reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”

The Colorado voters argued that Trump, having taken an oath to support the Constitution as president and subsequently “engaged in insurrection” by seeking to overturn his election loss culminating in the Capitol riot on Jan. 6, 2021, was ineligible to hold office again.

But the Supreme Court sided with Trump, saying that states, as opposed to the federal government, don’t have the power to determine eligibility for federal office.

Interview has been edited for length and clarity.

Tell us about the court ruling.

The bottom line ruling — which all nine justices agreed on — is that Colorado can’t remove Trump from the ballot. 

The majority opinion here was a “per curiam” opinion — it doesn’t say the name of the justice who wrote it or the ones who joined it. We know that five of the nine justices joined it in full, because the other four justices joined other opinions which concurred in judgment — that Colorado can’t kick Trump off the ballot — but said the ruling went too far in other ways we’ll discuss soon.

Why was the majority opinion here done as a per curiam opinion of unknown authorship, rather than the typical way of writing the name of the justice who wrote it and the ones who joined it? 

There’s not a good reason. 

I think Chief Justice John Roberts wrote it, but he was trying to avoid the authorship because it’s political. Perhaps in an earlier stage in the proceedings, it was a unanimous decision in which all nine justices agreed fully. Then again, just because a decision is per curiam doesn’t mean everyone agrees — though if no one writes a dissent, it would appear as if it were a unanimous ruling, since we don’t actually know who joined and didn’t join.

But in the end it seems the Court went further than four justices would have liked, so they wrote other opinions. And the Court probably just left the majority opinion as per curiam, as it was in the beginning, because probably several justices worked on it.

If I had to guess, I’d say it’s a Roberts/Kavanaugh/Barrett production, but I think Roberts took the lead. It has all his hallmarks.

Since this is obviously a very politically charged issue, and I’m sure the Court, particularly Roberts, doesn’t relish the idea of getting so involved in a presidential election, do you feel that doing it per curiam rather than using the names serves to tone down any appearance of partisanship on the Court?

Maybe yes, but not much. 

So the Court ruled that because the end of the 14th Amendment, Section 5, says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” that means only Congress, and not any state, can act to kick Trump off the ballot.

What about the rest of the 14th Amendment? Is that given only to Congress or do states have any power to enforce it?

The answer is a little bit tricky. 

Generally, when the government takes action against you, like they prosecute you or sue you, you don’t need legislation; you can always raise the Constitution as a defense. But when you seek affirmative relief — like you are these Colorado voters who sued to kick Trump off the ballot — you need legislation.

So Section 5 applies to all parts of the 14th Amendment equally. But the difference is that these Colorado voters were seeking affirmative relief, as opposed to cases where you’re raising a defense.

So, for example, if you’re Homer Plessy [a Black man who was criminally prosecuted in Louisiana for getting on a whites-only train car and was the petitioner in the landmark 1896 Supreme Court case Plessy v. Ferguson], you can argue that the Louisiana law violated the provision of Section 1 of the 14th Amendment that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” You don’t need Congressional legislation to do that.

And if you go through other cases throughout history involving various provisions of the 14th Amendment, they were raised as a defense by plaintiffs challenging some legislation, or some other action taken in a defensive posture like a criminal proceeding. It’s pretty consistent. As opposed to this Colorado case, where these plaintiff voters are seeking affirmative relief — they are trying to get Colorado to do something: kicking Trump off the ballot. 

In fact, Trump wasn’t even initially a party to the case. The case was brought by the Colorado voters against the Colorado secretary of state, to try to get her to kick Trump off the ballot. Trump intervened to become a party in the case.

And because these voters were seeking affirmative relief to get the state to do something, rather than acting in a defensive posture, the Court ruled here that you need federal legislation for that.

But this might come up in a defensive posture in the following example: Let’s say an insurrectionist becomes the U.S. Attorney and he indicts someone. That defendant can say, “This person is an insurrectionist; he’s not allowed to hold office.” And he can litigate that, even if Congress has not passed any legislation to that effect.

It would seem that the Court majority doesn’t agree with what you are saying, and holds only Congress can pass legislation to disqualify someone — and that’s why the four concurring justices — Kagan, Sotomayor, Jackson and Barrett — felt the majority went too far in explicitly saying only Congress can pass legislation to that effect. 

I don’t think the majority opinion proposes that; all they’re saying is that if you want affirmative relief to take someone off the ballot, you need legislation. They’re not saying it requires legislation in all regards, even defensive postures. They wouldn’t be possible. And if that’s what they were saying, they’d have to be wrong. 

So if Congress doesn’t pass legislation, even under the majority opinion, you believe Trump can be kicked out of office if someone brings a suit in a defensive posture?

I think what the ruling says is that when someone seeks affirmative relief in federal court, such as kicking Trump off the ballot, they need legislation. But I don’t think they actually address what happens once Trump is in office and someone is taking defensive action against him.

So let’s say on Trump’s first day in office, he fires someone, which he probably will do. And the person says, “You can’t fire me, you’re not really the president.” I think at that point, the Court can litigate whether Trump is the president.

Let’s say Trump would have been prosecuted and convicted of insurrection in a federal court. Under the majority ruling, could that be enough to affirmatively kick him off the ballot?

The Court doesn’t give a square answer on this. The Court references the Insurrection Statute and sort of suggests that might be enough but doesn’t say that outright. I believe, though I’m not certain, that a conviction under the Insurrection Statute would probably be enough to impose disqualification. It’s true that that law was signed by President Lincoln before the 14th Amendment. But it’s been on the books for over 150 years, and it’s a way that Congress can implement the insurrection ban, and I think it probably would suffice, though I’m not sure.

The concurrence by Barrett seems to me to be saying the same thing as the concurrence by Jackson, Sotomayor, and Kagan — that the states can’t disqualify someone, but that the majority went too far in saying only Congress could — just in more concise and more polite language.

Amy Coney Barrett is hard to read. I read those two paragraphs many times, and every time I read it I see something different. I think she actually probably agrees with the majority that Congress has to pass implementing legislation, but she thinks maybe the Court didn’t have to go there in order to decide this case.

I think the three liberals disagree with the majority that Congress has to pass implementing legislation. But I don’t think it matters much for, frankly, anything. Because the Supreme Court’s opinion, I think, pretty much says Congress can’t do it with existing law and would have to enact a new statute — though, as I said, they might be able to use the existing Insurrection Statute.

Congress is not going to enact new legislation of this sort in the next 10 months. 

Congress could try and say that the Electoral Count Act — which lays out the procedures for how Congress certifies the presidential election each January 6 following a presidential election — is enough, and disqualify Trump on January 6, 2025. I just don’t see them doing it.

Theoretically, special counsel Jack Smith could indict Trump for insurrection, but that’s not going to happen; no one’s been indicted for insurrection related to January 6, 2021. Congress can enact some sort of civil law that allows a lawsuit to be filed in D.C. to disqualify someone for insurrection, but I don’t see that legislation getting passed with a Republican Congress, or even with a Democratic Congress and filibuster. 

So I think the issue is pretty much done until Inauguration Day.

What matters is what happens after Inauguration Day. That’s really the big issue.

And I believe litigation would immediately begin to try to have Trump declared ineligible to hold office. For example, like I said, someone who Trump fires might then bring a suit saying he is not eligible to be president. Or if Trump issues an executive order regulating private property interests, those adversely affected will claim that Trump has no lawful authority to issue any such order. Trump might pardon everyone who participated in the events of January 6, 2021, and maybe a federal judge would refuse to recognize the validity of such pardons, saying Trump is not president.

If Congress were to pass legislation, what would it say?

It would have to say something like, “Congress may disqualify electoral votes based on Section 3.” You need a law saying that’s a valid ground for disqualifying someone.

All nine justices agreed that Colorado can’t kick Trump off the ballot because they accepted Trump’s argument that states don’t have authority to do that. 

There were a bunch of other arguments Trump also made: that what occurred on January 6, 2021, was not an insurrection; that even if there were an insurrection, Trump did not engage in it; and that Section 3 doesn’t apply to Trump anyway because a president is not an “officer of the United States” per the language of Section 3. You and Professor Seth Barrett Tillman have written particularly about the latter argument — including in an amicus brief in this case.

Trump would have won the case by winning any one of those arguments. Why do you think the Court chose to rule only on the question of whether the state has the right to do this, rather than on any of his other arguments? Is it because that was less controversial than deciding an issue like whether an insurrection occurred?

Chief Justice Roberts likes to focus on the issue that could get the most votes. Seth and I were always candid that we never thought our position would get nine votes — maybe three or four, maybe even five. Jackson and Gorsuch seemed interested in it at the argument, as you recall. But this is something that Roberts thought he could get the most votes on — and it worked. 

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rborchardt@hamodia.com

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This interview originally appeared in Hamodia Prime magazine.