James Pfister: Saving our federal democracy
It would be unfortunate if a state or two could determine a presidential election by voter suppression. Such would truncate the relationship between the people and the presidency. Fortunately, the federal Supreme Court (herein the court) stepped in to save our federal democracy in Trump v. Anderson, decided March 4. Life-appointed justices, without political or business obligation, stood above an irresponsible political fray. But was the opinion based more on policy and practical implications than on the text of the Constitution?
In Trump v. Anderson, plaintiffs were four Republican and two unaffiliated voters in Colorado. They argued that former President Trump (herein Trump), on Jan. 6, 2021, engaged in an insurrection against the United States and was, therefore, barred from the presidency by Section 3 of the 14th Amendment to the federal Constitution (herein Section 3). Ultimately, the Colorado Supreme Court agreed that Trump was an officer of the United States and engaged in said insurrection. By a close vote, they ordered Trump’s name not be on the primary ballot and any write-in votes for him not be counted.
The Court reversed the judgment of the Colorado Supreme Court in a Per Curiam decision. The three liberal justices wrote an opinion concurring in the judgment of the Court. Still, they believed that the majority went too far in holding that only Congress could enforce Section 3, since that was not necessary to resolve the case. Thus, the liberals thought the conservatives went too far!
The basic legal reason the Court ruled against the state was federalism. The Fourteenth Amendment, as a post-Civil War provision, represented an increased power of the federal government over the states. It placed limits on states; for example, “… nor shall any State deprive any person of life, liberty, or property, without due process of law …” The Court wrote: “It would be incongruous to read this particular Amendment as granting the States the power — silently no less — to disqualify a candidate for federal office.” Giving states that power “… would invert the Fourteenth Amendment’s rebalancing of federal and state power.” Contrary to the opinion of some legal commentators, the Court did not see Section 3 as “self-executing” as are other parts of the Amendment, such as the Due Process or Equal Protection clauses.
Regarding precedents, the Court referenced the famous McCulloch v. Maryland case (1819) for the proposition that states cannot interfere with the federal level of government. Other 19th-century precedents included cases that held that states do not have the power to issue writs of mandamus against federal officials or grant habeas corpus relief to persons in federal custody. The 20th-century case of U.S. Term Limits, Inc. v. Thornton (1995), which held that states could not impose term limits on their representatives in Congress, was also cited.
Past practice was also considered. Congress acted shortly after the Fourteenth Amendment to pass the Enforcement Act of 1870. No tradition of state enforcement of Section 3 against federal officers exists: “Such a lack of historical precedent is generally a ‘telling indication’” that states do not have power regarding federal officers under Section 3. There has been a “’general understanding’ that States lacked enforcement power …” regarding federal officers.
There were practical implications and policy concerns. One issue was uniformity of standards with some states, say, using a preponderance of evidence standard while another uses a stricter standard, so that the same person would be treated differently.
There is the policy issue of allowing one or two states to decide the presidential election by affecting a candidate’s ability to receive the required number of Electoral College votes. There would be votes not allowed to be cast. There would be serious legitimacy concerns regarding our democracy. In a policy mode, the court wrote: “The ‘patchwork’ that would likely result from state enforcement would ‘sever the direct link that the framers found so critical between the National Government and the people of the United States’ as a whole (citing U.S. Term Limits, Inc.) … Nothing in the Constitution requires that we endure such chaos. …” This is a concern with consequences, or policy-making, normally reserved for the political branches of government.
The court, at times, must make some policy by itself to avoid serious unfortunate consequences. It did so here. It saved our federal democracy.
— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.
This article originally appeared on The Holland Sentinel: James Pfister: Saving our federal democracy
