A Partially Annotated Version of SCOTUS's Section 3 Case

On Monday, the Supreme Court surprised only the most optimistic of folks and reversed the Colorado Supreme Court's decision disqualifying Donald J. Trump from the 2024 Colorado Presidential Primary. Most of us knew there was no chance the Court would affirm, and some of us thought pretty strongly that they would reverse based on some form of "states can't do this on their own theory." The Court held states can disqualify insurrectionists from state office but not federal office, at least absent authorizing legislation from Congress. Below is a partially (very partially) annotated version of the opinion.

First, the Court quoted Section 3 in its entirety, so here it is (hopefully for the last time in my lifetime):

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The first thing one might observe is that there is not a single word in Section 3 suggesting states are not allowed to disqualify from federal office folks who engaged in an insurrection. So much for text.

The Court describes the 14th Amendment as follows:

Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expanded federal power at the expense of state autonomy” and thus “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59 (1996).

Well, federal courts scholars know that in many doctrinal areas, such as abstention and Section 1983 law, the Court has often interpreted the 14th Amendment as if it had almost no effect on the relationship between and state and federal power. But that's an essay for another day. 

The case the Court cites for that proposition about state and federal power is a case where the Court interpreted the phrase "another state" in the 11th Amendment to mean the "same state," so that under that Amendment, citizens of a state can't sue their own state, which flatly contradicts the text. The case also dramatically limited Congress's powers to hold states liable for violations of federal law. Seminole Tribe is a very odd case to cite for the proposition that the 14th Amendment changed the balance of power towards the federal government and away from the states. Seminole Tribe did exactly the opposite.

The Court relied to a great degree on Section 5 of the 14th Amendment which gives Congress the power to enforce that amendment through "appropriate legislation." The justices said the following:

Congress’s Section 5 power is critical when it comes to Section 3.... We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

First, what legal work does the word "especially" do in that quote? Feel free to let me know on X/Twitter if you have an answer. 

It should be noted that very few historians advocated this "states can't enforce Section 3" approach, and the Court's picking and choosing of a few sources from 150 years ago simply does not justify the conclusion. But that's no surprise, since the Court's historical analyses are almost always absurd attempts to show one side of history supports the sought-after result without much analysis, if any, of opposing sources, and all that is true here. So much for originalism.

The Court went on to say the following:

Because federal officers owe their existence and functions to the united voice of the whole, not of a portion of the people, powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States....”  U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995).

The case cited for this rule involved Arkansas placing term limits on members of Congress, and the Court rejecting that approach as unconstitutional. It must be noted, however, that the beacon of consistent judicial review, Justice Clarence Thomas, bitterly dissented in Term Limits and argued that, absent a specific rule modifying the default, the states may always act unless the federal Constitution takes their power away directly. 

Well, no part of Section 3 or any other constitutional provision takes power away from the states to disqualify people under Section 3. No matter, for Justice Thomas every day is a new day but some cluster of words from him explaining his inconsistent votes would have been helpful (no other member of the current Court was part of the term limits case). For Thomas, at least, so much for precedent. 

The Court went on:

The respondents...maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.

Go back and read the text of Section 3. Does it say anything about who can enforce it? It says Congress by a 2/3 vote can repeal a disqualification but there's not a syllable about who is supposed to enforce it.  Section 1 of the 14th Amendment, which prohibits states from denying any person due process, equal protection, or the privileges or immunities of the United States, unequivocally does not require Congress to enact legislation under Section 5 before its provisions are enforceable in court. So why would Section 3 require such legislation? Here is the Court's response:

Under the Amendment, States cannot abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (without thereby suffering reduced representation in the House). On the other hand, the Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States. 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.

Why would that be incongruous? The 14th Amendment lays out new rules for what the states cannot do and a new rule about who is disqualified from holding another office. Nowhere does it say that only the feds can enforce the "no insurrection after taking an oath," rule and obviously the states have enormously strong interests in not sending insurrectionists to work for the National Government.

There are numerous practical problems with fifty states reaching different conclusions about who is and who is not an insurrectionist but the Roberts Court has famously talked the talk of text and history being the only, or at least dominant, sources of constitutional meaning. Here, policy clearly Trumped text and history. Of course.

The Roberts Court in previous cases seemed to say tradition was important to constitutional interpretation, so here's the opinion's paen to tradition:

Nor have the respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment. Such a lack of historical precedent is generally a telling indication of a severe constitutional problem with the asserted power. And it is an especially telling sign here, because as noted, States did disqualify persons from holding state offices following ratification of the Fourteenth Amendment. That pattern of disqualification with respect to state, but not federal offices provides persuasive evidence of a general understanding that the States lacked enforcement power with respect to the latter.

Well, maybe, but was any Southern State in the immediate post-Civil War era  really going to disqualify a bunch of former confederates from federal office? I think we can all agree that would be extremely unlikely. How about the Northern States? Well, really, how many Confederate officers were there in Northern States after the War who were seeking federal office and who had taken an oath to uphold the Constitution, and who Congress had not already disqualified? In any event, the Court does recognize that there is a case where a state (a Southern one) did actually disqualify someone under Section 3:

In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because—in the Governor’s view—Section 3 made Christy ineligible to serve. But the Governor’s determination was not final; a committee of the House reviewed Christy’s qualifications itself and recommended that he not be seated. The full House never acted on the matter, and Christy was never seated.

This attempt to distinguish the Christy case is, of course, unpersuasive as a state did disqualify someone seeking federal office and the fact that a congressional committee of the House agreed does not constitute formal action by Congress under Section 3. Although the full House can judge the qualifications of its members, a committee of the House cannot. Thus, the committee's recommendation had absolutely no legal effect, but the state disqualification did. 

Towards the end of the opinion, the Court suggests that there may be some limitations on Congress's powers under Section 3 derived from previous cases holding that, to act under Section 5, Congress must pass a law that has “congruence and proportionality” towards the evil sought to be remedied. As the concurrence in the judgment by the three liberal justices argued, there was no reason to mention this issue and it is classic dicta, since Congress's power was not at issue in this case.

I hope we never have to find out what "congruence and proportionality" means in the context of Section 3, given that we have no idea what it means when it comes to federal laws seeking to enforce Section 1 of the 14th Amendment. In any event, the issue of when Congress can disqualify anyone should not have been any part of this case. So much for just deciding what needs to be decided and nothing more.

Justice Barrett decided to take this opportunity to criticize the other three women on the Court (all of whom agreed with the result) because they had the temerity to suggest the Court went too far in its opinion (which is a fair criticism by the three liberals as discussed above). Barrett responded:

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home. 

In addition to being wildly condescending, this request for uniformity and civility is a bit off putting, given that Barrett has voted on numerous occasions to dramatically change well-developed and reasonably settled areas of constitutional law in quite a controversial fashion. It appears, as Mike said so well, that the best explanation for this hollow civics lesson is that she didn't like "women disagreeing with men." 

My final thoughts are that the Court came to the right conclusion for mostly the right reasons, none of which follow persuasively from text or history, but that is true in almost every constitutional law case the Court is called upon to resolve. I think it would be a terrible idea for fifty states to have the authority to disqualify federal officials for being insurrectionists and my prediction was a Court disqualification of Trump would have led to serious violence and possibly a coup attempt. I think America dodged this bullet. Now it is up to us, the people (not judges) to save our democracy, which actually has been true all along the way.