Nine Justices in Search of an Excuse to Nullify Section 3 of the 14th Amendment

I was not surprised by the outcome or even the unanimity of the result in Trump v. Anderson. I was surprised by the per curiam opinion's failure even to address some seemingly obvious objections to the arguments the Court offered to justify its decision. Indeed, some of the objections that went unaddressed were not merely seemingly obvious; they were articulated expressly in the concurrence in the judgment by Justices Sotomayor, Kagan, and Jackson (hereafter SKJ). And while I thought that SKJ did well in their critique of the per curiam, their own affirmative views are no less problematic than those of the per curiam.

1) The primary reason the Court gives for its conclusion that the Colorado Supreme Court erred is the claim that Section 3 of the 14th Amendment is not self-executing--at least not with respect to eligibility for federal (as opposed to state) office. Here's the crucial passage in the per curiam:

The Constitution empowers Congress to prescribe how [Section 3 disqualification] determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment.

But why? Section 1 of the 14th Amendment is self-executing. No legislation by Congress is required to entitle persons otherwise properly in state or federal court to object that the application of state law or policy to them violates "due process" or "equal protection." Those terms are no more determinate than "insurrection or rebellion," so if the Supreme Court can give definitive content to due process and equal protection even absent implementing legislation under Section 5--as numerous cases hold--there is no good reason why the Court could not have, in this very case, defined insurrection or rebellion with as much specificity as needed.

Moreover, the text of Section 3 strongly implies a special reason why it in particular is self-executing. As SKJ point out, by authorizing Congress to lift the bar on insurrectionists by a 2/3 vote, Section 3 implies that the default is automatic disqualification. In a passage I read about a dozen times before giving up and assuming that the per curiam author is simply trolling readers, the Court actually says that the assignment to Congress of an "amnesty power" via a 2/3 vote somehow "reinforces" its (erroneous) conclusion that Section 3 is not self-executing.

2) Although the per curiam does not expressly address the problem just noted, it gestures towards a distinction between Sections 1 and 3 of the 14th Amendment. To enforce Section 1 absent Congressional legislation, courts impose limits on the states--which is broadly consistent with the core purpose of the 14th Amendment, but for a state to enforce Section 3 against "federal office holders and candidates," the per curiam says (and on this point SKJ appear to agree), "would invert the Fourteenth Amendment’s rebalancing of federal and state power."

But that's true only if one takes a narrow view of the 14th Amendment's aims. The citizenship clause of the 14th Amendment overruled Dred Scott. The due process, equal protection, and privileges & immunities clauses overturned the Black Codes. Section 2 aimed to prevent the states of the former Confederacy from obtaining a representation benefit without enfranchising the freedmen. Section 3 prevented those who sought to destroy American constitutional democracy from seizing its reins. Section 4 ensured that upon returning to Congress, delegations from those states would not question debts accumulated for the Union to prosecute the Civil War. Section 5 empowered the Reconstruction Congress to give each of those provisions real effect should the courts not do so. Seen in this larger perspective, the 14th Amendment did rebalance federal and state power, but it did so for the deeper purpose of preventing the defeated rebels or others who would follow in their footsteps from repeating sins of the past.

Seen in that broader perspective, there is nothing at all anomalous about state enforcement of Section 3 against federal office holders or candidates. Where those people are insurrectionists, one might better conclude that failure to enforce Section 3 betrays the 14th Amendment's core purposes.

3) Although I agree with much of the SKJ substantive critique of the per curiam, they're arguably wrong that the majority's discussion of Congressional primacy is gratuitous dicta. Although the per curiam is hardly clear on this matter, it could be read to say that there is a lack of judicially discoverable and manageable standards regarding how one proves that someone is ineligible to hold federal office as an insurrectionist. In this view, the Colorado Supreme Court erred by deciding a political question that is nonjusticiable because committed to Congress. Although I believe the Court was wrong in that conclusion, if that was indeed its conclusion, then making the point was not dicta because justiciability is jurisdictional and thus a threshold question. I hesitate to criticize SKJ on this ground, however, because the per curiam nowhere expressly states (or even implies) that its consideration of the necessary conditions for federal invocation of Section 3 is part of a threshold determination of justiciability.

4) I am less reluctant to criticize SKJ on a more fundamental ground, however. They agree with the majority that states cannot enforce Section 3 at the ballot eligibility phase. How, then, do they think that Section 3 can be enforced (albeit without Congressional action under Section 5)?

One possibility would be ballot eligibility lawsuits in federal court. A plaintiff with standing--say, President Biden in the general election--would sue election officials in each of the 50 states plus D.C., arguing that former President Trump should be kept off the ballot in each of those jurisdictions. But that could yield the very "chaotic state-by-state patchwork" that, according to SKJ agreeing with the per curiam on this point, justifies denying state courts the power to use Section 3 to disqualify a candidate from the ballot. And any mechanism available for avoiding or resolving the chaos arising out of conflicting federal district court judgments--such as a defendant class action of election officials in all states or Supreme Court review--is also available with respect to state court judgments. Thus, if SKJ were upset with the majority for ruling out federal district court determinations of Section 3 ineligibility, they should not have voted to reverse the Colorado Supreme Court at all.

So maybe SKJ have in mind some different posture for adjudication of Section 3 eligibility. Maybe they think that when Congress convenes on January 6, 2025, it should be able to reject Electoral College votes for an insurrectionist candidate without first enacting legislation setting forth procedures by which a court makes a finding of ineligibility. Or maybe they want to preserve the possibility of disqualification lawsuits in just one federal court after the election. But these options would make the stakes confronting courts even higher. In any event, SKJ don't mention either of these alternatives.

SKJ do describe one specific alternative means of enforcing Section 3 that they think the per curiam unnecessarily eliminates. They complain that the per curiam "forecloses judicial enforcement of [Section 3], such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score."

What does that mean? As I read SKJ, they want to leave open the following possibility: Say Trump is elected and, with Senate advice and consent, appoints John Eastman Attorney General. Then suppose a federal criminal prosecution for some serious crime, interstate kidnapping, say. I believe SKJ are saying the defendant ought to be able to avoid criminal liability on the ground that DOJ is headed by an insurrectionist. And if that kind of argument works, it would also be open to anyone facing criminal or civil liability under a statute that a second-term Trump signs into law to argue that the law is invalid because Trump, as an insurrectionist, wasn't really President. Just about all agency action would be void too, because agency heads appointed by an insurrectionist President weren't really appointed and thus lacked any power to take any official action.

Yet this sort of after-the-fact invalidation of the acts of insurrectionists would be way more disruptive and chaotic than an ex ante determination by state courts and state election officials--reviewable by SCOTUS to provide uniformity--that Trump either is or is not ineligible for the Presidency in virtue of Section 3. The chaos that SKJ seemingly invite is worse than the chaos they say their decision to join the majority in the bottom line avoids.

* * *

In her own separate partial concurrence, Justice Barrett accuses the other female Justices of "stridency," apparently for no other reason than that they're women disagreeing with men. Despite the insult, Justice Barrett tries to play peacemaker. The Justices' "differences are far less important," she says, "than [their] unanimity."

She's right about that but not in the way she means. The Colorado Supreme Court was reversed because a majority of its members had the courage to follow the law. Not so, SCOTUS. Both the per curiam and SKJ offer unpersuasive grounds for leaving to other actors a task that they know those other actors almost certainly will not undertake--namely, to heed the warning from, and follow the path laid down by, our farsighted forebears during Reconstruction.