Dicta and Dictatorship

It seems to me that the majority of the current Justices of our Supreme Court are inclined to transcend, to put it kindly, the cases before them.  That is to say, they aren't afraid to do more than is required of them from the standpoint of the law, strictly speaking, but rather tend in addition to do and say what they nonetheless deem it appropriate for them to do and say.  This kind of conduct is something former, liberal, Justices were accused of by conservative commentators.  

Consider the recent decision regarding the action of the Colorado Supreme Court in disqualifying a candidate for the presidency from appearing on the ballot in that State under Section 3 of the Fourteenth Amendment.  That Section states that those who engage in an insurrection contrary to the oaths of office they took to the Federal and State constitutions are disqualified from running from such an office in the future.  SCOTUS struck the Colorado decision down.  All nine of the Justices thought it appropriate to do so, but some of them thought that the opinion could do so by simply holding that the States cannot enforce Section 3 except with respect to disqualification from State offices.  The opinion does much more than that.  It contains language indicating that Section 3 can be enforced only if Congress passes legislation providing for its enforcement.  In the late 19th and early 20th centuries, Congress passed legislation providing for the disqualification of non-legislative office holders and members of Congress.  No legislation has been passed regarding disqualification when it comes to the office of president, however.  The majority of the Justices apparently think such legislation is needed before such disqualification may be enforced.

Four of the Justices thought this additional language regarding the need for legislation to enforce Section 3 is the result of the court indulging in rendering an opinion, or commenting, on matters not necessary to the decision of the court.

In the wide, wonderful world of the law in our Great Republic, a distinction is made between language in caselaw which constitutes the holding of a court, and what is called dicta.  Generally speaking,  dicta is language in an opinion  which isn't necessary to resolve the case before the court.  It may be a comment, an observation, a suggestion, or mere declamation.   Because it isn't necessary to the holding of the court, and thus the resolution of the case, dicta need not be followed by other courts.  It doesn't create precedent.  It's merely persuasive, if anything.  What is precedent is the holding itself, and the reasoning needed to arrive at it.  To give that reasoning its lovely Latin name, the ratio decidendi.

It's important to determine whether statements in the opinion that Congressional legislation is required before there can be disqualification from the office of president is dicta or binding precedent.  Five of the Justices claim, in responses to the concurring opinions, that the statements are part of the reasoning required to strike down the action of the Colorado Supreme Court.  This doesn't mean it isn't dicta, however.

If it isn't dicta, then it appears that it's not yet possible for someone to be disqualified from the presidency.   There must be Congressional legislation before that can be done.  In the interim, Section 3 doesn't apply.  

It would seem the language of Section 3 is sufficiently clear that additional legislation, saying essentially the same thing, isn't needed for it to apply.   In fact, in taking the position that more legislation in effect parroting Section 3 is necessary the five Justices render Section 3 superfluous, contrary to rules of construction of statutory law.

More significant, though, is the fact that the Congressional legislation supposedly required may never be adopted.  So, nobody running for president may ever be disqualified from doing so by Section 3.  A candidate for president may engage in insurrection and not be disqualified under the Fourteenth Amendment, for now.

By requiring further legislation specific to the office of president, SCOTUS runs the risk of making the application of Section 3 to the presidency a political decision.  In the decadent state of our government, it's easy enough to envision members of Congress fearful of adopting such legislation because it may be used against their party's presidential candidates.

 In the decadent state of the law, a candidate for president, or one who wins the presidency, isn't disqualified by engaging in insurrection despite the clear language of Section 3 of the Fourteenth Amendment.  In the decadent state of our society, a candidate's supporters may engage in insurrection and it won't prevent the candidate from being president, even if the candidate encouraged it.