The Supreme Court Makes the Right Decision for the Wrong Reason
The Supreme Court unanimously rejects Colorado ruling removing Donald Trump from ballot
The Colorado Supreme Court ruled that Donald Trump was ineligible to appear on the ballot as a presidential candidate because he had committed insurrection on January 6, 2021 and was therefore barred under Section 3 of the 14th Amendment to the U.S. Constitution. The United States Supreme Court unanimously ruled that Colorado does not have the power to ban candidates for federal office from the ballot under the 14th Amendment, and reversed the Colorado Supreme Court’s decision.
We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 [of the 14th Amendment] with respect to federal offices, especially the Presidency.
I agree that the Colorado Supreme Court’s decision to remove Trump from the Colorado ballot should have been reversed, but the reason is more simple: Donald Trump has never so much as been charged with the crime of insurrection let alone convicted. You cannot punish someone for a crime that they have never been convicted of. This is a bedrock principle of the American justice system that Colorado and other states attempted to subvert for their own partisan political ends.
The U.S. Supreme Court, however, went further and declared that no state can disqualify a candidate for federal office under Section 3 of the 14th Amendment.
Such power over governance, however, does not extend to federal officeholders and candidates. Because federal officers “‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’ “powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States.” [emphasis mine - KM] U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.
For starters, the bolded portion is the exact opposite of how the U.S. Constitution is explicitly setup, per the 10th Amendment. Powers must be explicitly delegated to the federal government in the Constitution, not to the states. The powers of the states do not need to be enumerated by the U.S. Constitution.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Secondly, there is no “united voice of the whole people” that elects federal officers. Per Article 2 of the Constitution, the states may appoint electors to the Electoral College to elect the President of the United States.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The U.S. Congress may choose the time and day of the selection of those electors for the states, but it is the state governments that choose the the manner in which the electors are chosen for themselves. In other words, it is the individual states that elect the President through the Electoral College, not the mythical “united voice of the whole people” which is nothing more than a meaningless legal fiction. It is the candidate that wins the electors of enough states individually that becomes the President, not the candidate that wins the popular national vote.
So if each state has the power to decide for themselves how to appoint their electors to select their chosen candidate for the federal office of the President of the United States, then how can it be possible that they do not have the power to disqualify a candidate for that office from being selected by those electors? It does not follow logically, and, per the 10th Amendment, nothing in the U.S. Constitution or the 14th Amendment specifically prohibits the states from doing so. That said, they cannot simply change their rules right in the middle of an election season because they want to hurt a particular candidate, as Colorado and others were trying to do in this example, but they have exclusive power to set those rules beforehand and there is no explicit prohibition from them barring people convicted of crimes under Section 3 of the 14th Amendment in the Constitution itself, which, again, would not apply to Donald Trump anyway.
While we should be happy that the Supreme Court came to the obviously correct conclusion regarding a particular candidate’s legitimate inclusion on electoral ballots, we should be more unhappy that the Supreme Court once again increased the power of the federal government at the expense of the states. The United States government is a behemoth that bears no resemblance to the federal government created by the bounds of the Constitution. Much of the blame for that can be laid at the feet of the U.S. Supreme Court. The Court is a part of the federal government and therefore should not be, and was never intended to be, in a position to rule absolutely on the limits of the federal government’s power.