STEVE INSKEEP, HOST:
The Supreme Court ruled on a part of the Constitution's 14th Amendment, the clause that bans people from holding office if they have committed insurrection after taking an oath. The unanimous ruling prevents Colorado and other states from keeping Donald Trump off the presidential ballot. Now, the Constitution says what it says, but the court dwelled on who can enforce this clause. The justices said states may not, and most of the justices added that Congress has to pass a law to regulate this. Jamie Raskin, Democrat of Maryland, had previously worked on legislation that would have enacted that clause of the 14th Amendment, and he's on the line once again. Congressman, welcome back.
JAMIE RASKIN: Delighted to be with you, Steve.
INSKEEP: I just got a note, a lot of Democrats before the Supreme Court ruling said, this is obvious - Donald Trump is disqualified. The court found it was obvious the other way.
RASKIN: Well, the supremacy clause of the Constitution says that the Constitution is binding on every other level of government, including the states. And so, to my mind, Colorado did the obvious thing. Just like it can exclude people from the ballot who are 22 years old, because you got to be 35 to run for president, and just like it can exclude people who are not U.S. citizens at birth - like Arnold Schwarzenegger, who was governor of our largest state, or Jennifer Granholm, who was born in Canada - it can also determine that someone can't be on the ballot because they've participated in an insurrection against the union, which is a very clear and emphatic principle in Section 3 of the 14th Amendment.
INSKEEP: I'm very interested in this reasoning because it sounds like you disagree with all nine Supreme Court justices on this one.
RASKIN: Well, absolutely I do. I mean, the whole point of this provision in the Constitution was to keep people away from the Oval Office and other federal offices if they'd proven themselves untrustworthy and willing to overthrow the governmental arrangements that gave them an office in the first place. And when the Radical Republicans like Thaddeus Stevens first brought it to Congress, it was a far more sweeping principle. They said that they should disenfranchise for life anybody who was involved in the insurrection, the secession or future insurrections.
And when it got over to the Senate, they said, that's way too broad. It should not apply to anybody who participated but only the most culpable people who had been serving in federal office or state office and participated in insurrection and violated their oaths. And even there they said those people could vote, it's just they could not run for office. So it's a very specific and determined original purpose embodied in the text of the Constitution. And the Supreme Court just punted and said, well, it's up to Congress. Now, the good news is they never in any way touched the factual finding by the Colorado court that there was an insurrection on January 6, 2021, or the finding that Donald Trump incited it and participated in it.
INSKEEP: And you're reminding us of some of the history, that this 14th Amendment was passed after the Civil War. It originally applied to former rebels and what their status would be in the reunited country. The Supreme Court ultimately said that an additional clause of this act that says Congress shall have the power to enforce the provisions through appropriate legislation means that Congress must, in this case, pass some kind of regulation to decide who would get to choose who is disqualified and who is not. What is your legislation that you've previously worked on that would, in fact, do that?
RASKIN: Well, that's not the way that the Supreme Court has interpreted the rest of the 14th Amendment. If a government engages in race discrimination or sex discrimination, that violates the equal protection clause in Section 1 directly, even without congressional action under Section 5. And we read Section 3 the exact same way. It's an affirmative command. It's a prohibition, a disqualification on serving in office. In any event, we understand...
INSKEEP: I just want to break in and acknowledge you disagree with that part of the ruling as well. I get it.
RASKIN: Yeah.
INSKEEP: But you're going on to propose this legislation, which would do what?
RASKIN: Yeah, well, we understand we need to act. We can't cry over spilled milk here. We don't expect much more from a right-wing court that's been structured and gerrymandered to give precisely these kinds of rulings. What we're trying to do is to pass legislation setting up a process whereby the attorney general of the United States and private actors can petition the U.S. District Court for the District of Columbia for a hearing on someone's participation in insurrection.
And so you'd be able to go to court. There would be complete due process and an adjudication and then an identification of someone of having participated in insurrection. And that would be binding on the entire country because the person would be disqualified as if they had already served two terms in office, like Barack Obama, or as if they were too young to run, or they had been born in a foreign country and were not a U.S. citizen.
INSKEEP: Just got a few seconds, but do you think there are some Republicans who might like to vote for this?
RASKIN: Well, we had 10 Republicans join us in impeaching Donald Trump for inciting an insurrection on January 6 in the House. We had seven Republicans who joined in the Senate to convict him.
INSKEEP: Oh, so it could be. Jamie Raskin of Maryland. We got to stop it there, but thanks very much for your insights, as always.
RASKIN: You bet, Steve. Transcript provided by NPR, Copyright NPR.
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