Legal experts spent the last week analyzing the U.S. Supreme Court’s decision that Donald Trump can remain on the ballot in the presidential election, despite his part in inciting supporters to storm the U.S. Capitol on Jan. 6, 2021. Here are some implications it may have missed.
The issue before the court was whether Trump disqualified himself from the presidency by violating the Insurrection Clause of the Constitution’s 14th Amendment. This clause states that anyone who swears to support the Constitution and later participates in an insurrection cannot serve in government.
In their unanimous decision, the nine justices ruled that states don’t have the authority to keep candidates for federal office off their election ballots based on the Insurrection Clause. But five of the six conservative justices went further — they decided not only to make new law, but to rewrite the Constitution. They ruled that a person cannot be disqualified from office by the 14th Amendment unless Congress passes legislation saying so.
It was a radical decision by a supposedly originalist court, designed solely to shield the former president from the Constitution’s sanction against “oathbreaking insurrectionists.” The justices are fully aware that Republicans in the current Congress would never approve such a bill.
Although Trump-appointed Justice Amy Coney Barrett said she hoped the decision would “turn the national temperature down, not up,” her conservative colleagues proved for the second time in a week that they are loyal to Trump rather than the Constitution. Six days earlier, the court delayed Trump’s trial on four counts related to his role in the insurrection, making it likely his trial will not be held before the election — and giving Trump hope he can win and then pardon himself. The rulings make the court’s conservative justices co-conspirators in Trump’s attempt to escape responsibility for the rebellion.
The court’s decisions also make November’s congressional elections at least as important as the outcome of the presidential race. Before explaining why, let’s point out a few other implications.
First, we should ask whether the disqualification clause applies only to oath-takers who aid an insurrection or also to oath-takers who aid an insurrectionist, in this case by helping one escape punishment prescribed by the Constitution. If yes, then the 14th Amendment disqualifies the current conservative justices from serving on the high court.
Second, if a legal authority must trigger the Insurrection Clause (a point contested by some respected legal experts), the authority clearly should not be a partisan body such as Congress, which cannot be trusted to rule “without fear or favor.”
In fact, many of the Republicans in Congress today should themselves be disqualified from office by the 14th Amendment. A total of 126 House Republicans participated in Trump’s fake electors scheme by trying to throw out valid election results in key battleground states. A total of 147 voted against certifying Joe Biden’s victory. They can’t implicate Trump in the rebellion without implicating themselves.
Third, the court appears to have exceeded its authority by adding a new requirement to the 14th Amendment. The proper procedure for amending the Constitution is ratification by three-fourths of state legislatures.
Fourth, the Supreme Court should demonstrate that oaths mean something and are fully enforceable in government, with or without the concurrence of Congress. Oaths should be inviolate for citizens, too.
Trump is forthcoming about his plans to weaken our democracy. Every American who has ever recited the Pledge of Allegiance has taken an oath to the republic. They would violate that promise by voting for Trump.
Fifth, if Trump loses the election, we must expect him to try to overthrow the outcome again. If he does, the Justice Department should indict him under the existing insurrection statute rather than relying on the now-crippled 14th Amendment. Lesson learned.
Finally, let us return to how the Supreme Court has elevated the importance of this year’s congressional elections. By showing that it is the Trump Court rather than the Roberts Court, the justices have shown they are not inclined to check or balance against Trump’s actions if he regains the presidency.
In November, voters will be the next line of democracy’s defense. If Trump wins, Congress will be the last line of defense.
A functional Congress will have these powers — and will need to use them:
- Impeach and remove all eligible federal officers, including the president, his Cabinet, Supreme Court justices, federal judges and possibly the president’s other political appointees.
- “Regulate and otherwise influence the federal courts,” as the Congressional Research Service explains, including many aspects of the Supreme Court’s structure and procedures. For example, Congress could change the size of the court to give it better ideological balance and establish ethics rules for the Justices.
- Limit the Supreme Court’s jurisdiction over specific issues under Article III of the Constitution, possibly including reproductive rights.
- Reject presidential nominations to the Supreme Court, other federal courts and Cabinet agencies.
- Pass laws and control the government’s purse strings to influence and curb presidential powers.
Electing such a Congress will require a historic purge of incumbent Republicans. But it’s a mission impossible that patriotic voters should choose to accept.
Virtually every Republican in the House and Senate has sold out to Trump. Senate Republicans failed twice to convict him of clearly impeachable abuses and crimes. House Republicans have become Trump’s servants, bullied into groundless impeachment proceedings against President Biden, a baseless and seemingly endless investigation into Biden family finances and a refusal to approve bipartisan immigration reform or continued military aid for Ukraine.
This year’s most important qualification for Congress is not party affiliation, but each candidate’s loyalty to the Constitution and declaration of independence from Trump. An uncorrupted Congress could work with second-term President Biden to create ideological balance on the Supreme Court, restore the people’s faith in democracy by fixing its shortcomings and demonstrate that integrity has returned to government.
This year’s mission should not be “Freedom for Trump,” but “Freedom from Trump.” He has been a toxic fixture in national government for nine long years. It’s time he became no more than a cautionary footnote in our history.
William S. Becker is executive director of the Presidential Climate Action Project, a nonpartisan climate policy think tank. A former senior official in the Wisconsin Department of Justice, he is a co-editor and contributor to “Democracy Unchained: How to Rebuild Government for the People,” and a contributor to “Democracy in a Hotter Time.”