Well, They’ve Done It Again…SCOTUS Rules for Trump, Thumb On The Election Scale

Yesterday the Supreme Court again put its thumb on the election scale for former President Trump.  In ruling that he had to be restored to the ballot in Colorado, and therefore in every one of the 50 states, the Court ruled in Part II.A of its opinion that the Insurrection Clause could ONLY be enforced through enabling legislation passed by Congress establishing federal processes and procedures.  Four justices…interestingly, all of the women…would have deferred that part of the decision for another day.  Because we know that Congress will not pass any such legislation this year, the Insurrection Clause challenge to Trump’s candidacy is dead.  Thus, even if he is in fact an insurrectionist, he can still be elected President.

Coupled with last week’s scheduling order deferring the briefing and argument on Trump’s presidential immunity claim, voters will be forced to make their decision in November not knowing if the former President has been criminally convicted on insurrection and election interference charges.  Pretty material.  In two consecutive weeks the Court has put its very large thumb on the election scale.  I blogged on both the immunity and the Insurrection Clause issues here over the past few weeks. 

Congress has to implement eligibility determination legislation before eligibility criteria can be enforced by a court?  Instead of going into all the potential issues, which I at least alluded to in the immunity blog post, let me ask a few relevant questions.  If President Obama had in fact been born in Kenya instead of Hawaii, as then non-President and even non-candidate Trump fraudulently claimed, would Obama have still been eligible to serve in the absence of legislation?  What would Donald Trump have said about that?  If President Kennedy had been 34 instead of 43 when he was inaugurated in 1960, would he have still been eligible to take the oath of office even though Congress never passed a bill to implement that age-related qualification?  How could the Chief Justice administer the oath of office to a plainly ineligible candidate?  

Just askin.’  

In addition, the potential confusion from multiple state court proceedings cited by the Court as a reason not to have this eligibility issue decided by the states is misleading in the extreme.  If the Supreme Court were to have ruled that Trump was ineligible under Section 3 of the 14^th Amendment as an insurrectionist, all 49 other states would have had to follow.  Have they forgotten Marbury?  Or the Supremacy Clause?

Lastly, the best way to determine, judicially, with the least confusion, if former President Trump is an insurrectionist, is to allow the Jack Smith trial to proceed in D.C. before Judge Chutkan, prior to the election.  But the Court won’t permit that either.

Once again the thumb is on the scale, and in one direction only.  As I said in my last blog post, for shame.

                                                                                     Richard P. Swanson

                                                                                     President-Elect, NYCLA

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The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.