The peaceful transfer of power is the defining feature of democracy. All our nation’s leaders since 1776, whatever their ideology or resentments, have respected it. The Supreme Court was asked in Trump v. Anderson to address whether a man who has defied this democratic norm is eligible to lead the country again.
The Constitution makes clear that he is not. Yet, the five-justice conservative majority ignored Constitution’s text and the structure to find for Trump — despite claiming to strictly interpret the Constitution
Credit: Courtesy
Credit: Courtesy
Section 3 of the 14th Amendment states: “No person shall . . . hold any office . . . who, having previously taken an oath . . . as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection . . . But Congress may by a vote of two-thirds of each House, remove such disability.”
The conservative majority ruled that only Congress can prevent an insurrectionist holding office. But the prohibition gives Congress power to reverse a ban, not to make it. It is basic constitutional interpretation that a power to reverse a decision denies having the power to make the decision. And that makes sense — if only Congress can make the decision, why would it need to reverse it?
At oral argument, Trump’s advocate admitted there was little constitutional basis for this argument, since the rest of the 14th Amendment is self-enforcing. That didn’t stop the conservative majority from embracing it.
The three liberal justices rightly rejected this argument but all agreed to rule for Trump for practical reasons. The unanimous court said allowing one state to assess disqualify an insurrectionist would lead to inconsistency, contrary to the notion of the president representing the entire nation.
That sounds reasonable, until you consider the rest of the Roberts court’s democracy jurisprudence.
The Constitution authorizes the states to conduct and regulate congressional and presidential elections. On that basis, the same conservative majority declared it won’t review egregious gerrymanders of congressional districts. And multiple justices in the Trump majority have argued that even state courts can’t review gerrymanders that are contrary to their own state constitutions.
The Roberts court has permitted states to make up rules that arguably contravene the right to vote, from closing polling offices in minority districts to purging voters from the polls. The enormous inconsistency in the franchise does not bother these justices.
The court’s three liberal justices wanted to stop there, but five of the six the conservative justices went further.
The majority emphasized the 14th Amendment “expand[ed] federal power at the expense of state autonomy.” Accordingly, only Congress can enforce the insurrectionist clause, and only through legislation. This is disingenuous for a number of reasons.
First, the conservatives have gone to great lengths in recent years to limit congressional power. Under the 14th Amendment, the Court has restricted congressional power to be proportionate to what the court deems to be a social problem. And the court created the “major questions doctrine,” presuming Congress hasn’t empowered executive agencies on major political or economic issues.
Second, it makes no sense for the one check on an insurrectionist president to be Congress, but to demand Congress pass legislation to do so, since that requires the signature of the very person the Congress is acting against.
The majority also pointed to the structure of the Constitution but the Constitution’s structure is the strongest argument for banning Trump. A person who defies the voters and refuses to leave office does violence to the body politic and democracy itself. They cannot profit from it by being given another chance to wreck our democratic institutions, or else no future vote may mean anything.
The liberal justices blasted the majority for “insulating” Trump from future accountability. But by giving their imprimatur of approval on the decision, they gave cover to the majority applying special rules to the person who has shown the least regard for the rule of law.
Law professor Tonja Jacobi holds the Sam Nunn Chair in Legal Ethics and Professionalism at the Emory University School of Law.
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