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Supreme Court put onus on Congress to enforce ‘Insurrection’ ban

Law professor sees ‘deep irony’ in decision to empower Congress

The Supreme Court building is seen at dawn in January.
The Supreme Court building is seen at dawn in January. (Bill Clark/CQ Roll Call)

The Supreme Court opinion that cleared the way for Donald Trump to appear on 2024 ballots also left it up to Congress to act before the Constitution’s so-called “Insurrection Clause” could be enforced — making it unlikely the issue will be reopened anytime soon.

The justices unanimously agreed that states can’t bar presidential candidates from appearing on ballots because of Section 3 of the 14th Amendment, which aims to prevent people who previously took an oath to support the Constitution from holding office if they have “engaged in insurrection.”

But a smaller majority of justices also described how the Constitution leaves it to Congress to pass legislation to allow enforcement of Section 3, which appears unlikely and still would not be guaranteed to survive a court challenge, legal and congressional experts said.

Kimberly Wehle, a law professor at the University of Baltimore, said that requirement would effectively read out the amendment provision from the Constitution.

“We don’t have a Congress that can agree on something like this, so they essentially took out their black sharpie and crossed Section 3 out of the Constitution by putting this additional hurdle up,” Wehle said.

The unsigned majority opinion zeroed in on language found in Section 5 of the 14th Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

And the opinion cited a part of the Colorado Supreme Court ruling that said there should be a determination on whether Section 3 applies to a specific individual “before the disqualification holds meaning.”

“The Constitution empowers Congress to prescribe how those determinations should be made,” the majority opinion states. “Congress’ Section 5 power is critical when it comes to Section 3.”

The political realities on Capitol Hill make legislation on that exceedingly unlikely during this presidential campaign, in which Trump is the front-runner to be the Republican party’s nominee — but the question would remain open going forward.

It wouldn’t be the first time Trump helped spark changes to election law. In 2022, Congress passed a law clarifying how Electoral College votes are counted in response to the attack on the Capitol on Jan. 6, 2021, and Trump’s effort to overturn his loss in the 2020 election.

Another bill filed that year aimed to allow civil enforcement of Section 3 of the 14th Amendment. It stalled in committee.

Democratic Rep. Jamie Raskin of Maryland said Monday that he is working with colleagues, including Democratic Reps. Debbie Wasserman Schultz of Florida and Eric Swalwell of California, “to revive legislation that we had to set up a process by which we could determine that someone who committed Insurrection is disqualified by Section 3 of the 14th Amendment.”

“The question is whether Speaker Mike Johnson would allow us to bring this to the floor of the House,” Raskin said on CNN.

Moments later, Raskin said that looked unlikely. “So, you know, we’re going to fight for it, but it looks like this is a constitutional norm that the people of the United States are going to have to enforce at the ballot,” Raskin said.

Johnson all but indicated that in a social media post, where he said the Colorado Supreme Court “engaged in a purely partisan attack against the frontrunner for the Republican presidential primary.”

“States engaging in the same activist, undemocratic behaviors should take notice and leave it to the American people to decide who will be president,” Johnson wrote.

‘Deep irony’

Wehle said Section 5 applies to the entire 14th Amendment, but the Supreme Court had never before ruled that the amendment’s Equal Protection or Due Process clauses need to have specific implementing legislation to be “meaningful.”

Josh Chafetz, a professor of law and politics at Georgetown University Law Center who focuses on congressional power, said there is a “deep irony” in the decision. Over the past three decades, the Supreme Court has rolled back what Congress had the authority to do under the 14th Amendment.

Chafetz pointed to the court’s 2000 decision in U.S. v. Morrison that limited the scope of the Violence Against Women Act and the 2013 decision in Shelby County v. Holder that limited the reach of the Voting Rights Act on 14th Amendment grounds.

In both of those cases, the Supreme Court majority said the 14th Amendment did not give Congress sweeping powers over gender-based violence or voting, Chafetz said.

“Then, all of a sudden, we get to a case like this where Congress hasn’t actually done anything,” Chafetz said. “And the court sort of picks up that same provision and uses it as a cudgel against other institutions and says, ‘Oh no, it’s only Congress that can enforce the 14th Amendment.’”

Chafetz pointed out the congressional requirement has the effect of forestalling a federal case over Trump’s eligibility for the ballot. He said that may have motivated the decision more than a genuine concern over whether Congress was the proper venue to decide the issue.

“If Congress did try to act, I think I’m like 50 percent joking about this, but I can imagine the justices saying, ‘Oh, no, Congress can’t do this either,’” Chafetz said.

David Super, a professor at Georgetown Law, said the majority decided they needed to articulate exactly how Section 3 is implemented. Four justices, in two separate concurrences, said the majority decided more than it needed to.

“The concurrences are simply saying that this isn’t up to the states and that the court shouldn’t decide anything more. The majority opinion says that there is only one narrow path to enforcing Section 3, and that is through legislation by Congress,” Super said.

Mark Graber, law professor at the University of Maryland, said there’s a disconnect between requiring implementation legislation from Congress and other language of Section 3, which states Congress can remove the bar from holding office by a two-thirds vote of the House and Senate.

Graber said it “makes no sense” for “Section 3 to say that Congress can remove the disqualification if nobody can be disqualified unless Congress acts. The last sentence of Section 3 seems to assume other officials can act to disqualify.”

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