Ron Filipkowski Didn't Listen To Oral Arguments The Way I Did

I listened to the Oral Argument today before the Supreme Court on Trump’s appeal of CO’s decision to exclude him from the ballot. This is my summary and prediction on the decision. https://t.co/TH59p4qnE3

— Ron Filipkowski (@RonFilipkowski) February 8, 2024

Which doesn't make Ron wrong, but still leaves me with a question his analysis doesn't answer (nor was it necessarily intended to):

It seems clear that this decision from the Colorado Supreme Court is going to be reversed, the only question is whether the decision will be made narrowly on a single point of contention from Trump, or if the court will make a very broad decision that no state is able to enforce Section 3 of the 14th Amendment because that is solely the purview of Congress to set a procedure for federal courts or to provide specific authority and procedure for the states to apply.

Justices Thomas, Alito, Kavanaugh, Coney-Barrett, Gorsuch and Kagan were clearly skeptical of Colorado's position. Justices Sotomayor and Jackson seemed to agree with Colorado on some points, while Chief Justice Roberts didn't tip his hand with his limited questioning. This could even end up being a unanimous decision with Kagan concurring with most of the decision of the majority and Jackson and Sotomayor concurring on the very narrow point that Congress must enact enabling language with uniform enforcement procedure for each state. 

I won't beat the dead horse of "uniform procedure" again.  It's a spurious point, to my mind, seeing as ballot access requirements vary across all 50 states, with "uniformity" meaning "meet the deadlines/requirements." But the question of enabling legislation looms large in the light of the last sentence of section 3:

But Congress may by a vote of two-thirds of each House, remove such disability. 

Now, can Congress delegate that ability via legislation?  I don't think so.  Can they overrule even a holding of the Supreme Court on the matter?  Seems clear they can.  How does that authority engage with due process and equal protection of the law (also provisions of the 14th Amendment)?  Or is this the Congressional equivalent of the Art. II pardon power?  Which seems to make it kind of fuck up hard any enabling legislation, and once again eviscerate the authority of these section of the Constitution.

Yes, Congress can do that, anyway.  But what legislation does it write that takes that provision into account?  A mechanism to bring such cases before Congress as the final arbiter?  Would that even be binding on Congress?  I think it would violate the provisions of Art. I, on a number of grounds.  But how could Congress enact Constitutionally valid legislation that is so enfeebled from the start?  Congress is expressly given authority to remove the disability if it so votes to.  How does that give Congress the authority to establish how the disability is determined and decided in the first place? (Yes, you'd have to determine an 'insurrection' was involved, and decide it was a disablility within the meaning of the section.  Two things the Court declined to consider at all this morning.)

Besides, with the example of Shelby County v Holder and other cases, which have reduced the VRA to a nubbin (leaving the 15th amendment another "erased" provision), what's to keep future Courts from erasing any attempt to enforce section 3?  Right now they're just declining to.  What does it say when they actively negate the ability to?

As I say, I wasn't really impressed with the quality of the arguments from anybody in that room Thursday morning.