Today's unanimous per curiam Supreme Court decision in Trump v. Anderson overturns the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the Fourteenth Amendment. It does so on the ground that Section 3 is not "self-executing." Thus, only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures. This outcome was predictable based on the oral argument. But it is nonetheless badly wrong.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Under the Court's reasoning only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures—at least when it comes to candidates for federal office, and officials holding those offices. The majority claims that Congress' Section 5 power to enact "appropriate" legislation enforcing the Fourteenth Amendment is the exclusive mode of enforcing Section 3.
There are multiple flaws in the Court's reasoning. Start with the fact that there is no good reason to believe that Section 5 is the exclusive mode of enforcing Section 3. As the Colorado Supreme Court pointed out in its ruling, Section 5 allows Congress to enforce not just Section 3, but every other part of the Fourteenth Amendment, including its protections against racial and ethnic discrimination, the Due Process Clause, and more. All these other provisions are considered to be self-executing, under longstanding Supreme Court precedent. Thus, state governments and federal courts can enforce these provisions even in the absence of federal Section 5 enforcement legislation. Otherwise, as the Colorado Supreme Court notes, "Congress could nullify them by simply not passing enacting legislation." Why should Section 3 be any different? Today's Supreme Court decision doesn't give us any good answer to that question.
The Supreme Court ruling also notes, following longstanding precedent, that Congress' Section 5 power is "remedial" in nature: it must be "congruent and proportional" to violations of the Amendment it is intended to remedy. If Section 5 legislation is supposed to be remedial—including when it comes to enforcing Section 3—that implies someone else—state governments and federal courts—has the initial responsibility for ensuring compliance with Section 3. The role of Section 5 is to remedy violations of that duty.
The per curiam opinion emphasizes the need for uniformity in determining eligibility for federal office, and argues that states lack the power to make such determinations:
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)…. But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.
This argument ignores the longstanding role of states in enforcing and adjudicating other constitutional qualifications for candidates for federal office, such as the requirements that the president must be 35 years old, and a "natural born" citizen of the United States. In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Texas Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen. State courts in Pennsylvania and New Jersey ruled that Cruz was eligible. But no one doubted that they had the authority to adjudicate the issue.
In a 2012 decision written when he was a lower court judge on the US Court of Appeals for the Tenth Circuit, Supreme Court Justice Neil Gorsuch upheld Colorado state officials' decision to bar from the ballot a would-be presidential candidate who was clearly not a natural born citizen. Then-Judge Gorsuch wrote that "a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." This reasoning applies to Section 3 just as readily as to the Natural Born Citizen Clause.
The main motive for the Court's decision may be the fear that letting states adjudicate Section 3 disqualifications will, lead to a "patchwork" of conflicting procedures and determinations. On top of that, there is fear that partisan state officials will seek to disqualify opposing-party candidates for specious reasons.
These are legitimate concerns. But, for reasons outlined in my commentary on the oral argument, they are overblown:
If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g.—by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.
Conflicting legal and factual determinations about candidate eligibility for office can also arise with respect to other constitutional qualifications for the presidency. For example, there might be disputes over the accuracy or validity of a candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't really bon in the United States, and that his birth certificate was fake).
The possibility of divergent conclusions on such issues is an unavoidable aspect of a system in which control over elections for federal offices is largely left to individual states, rather than reserved to a federal government agency. Perhaps the Framers of the Constitution made a mistake in setting up that system. Maybe it would be better if we had a national agency administering all elections for federal office, like Elections Canada, which fulfills that function in our neighbor to the north.
But the framers chose otherwise. As the per curiam opinion recognizes,"the Elections and Electors Clauses… authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2." That gives state governments initial authority (subject to federal judicial review) to enforce other constitutionally required qualifications for federal office. Section 3 is no different.
Concerns about a potential "patchwork" of conflicting state rulings are ultimately policy objections to the Constitution's decentralized state-by-state scheme of election administration. As the conservative justices (rightly) love to remind us in other contexts, courts are not permitted to second-guess policy determinations that are under the authority of other branches of government or—as in this case—the framers and ratifiers of the Constitution.
While today's Supreme Court opinion is unanimous, it's notable that both Justice Amy Coney Barrett (writing for herself alone) and the three liberal justices (in a joint opinion) wrote concurrences that seem to reject or at least call into question much of the majority's reasoning. I will likely have more to say about these opinions later.
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the January 6, 2021 attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it (the claim that he didn't strikes me as the best argument for his side of the case), whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices likely hope they can avoid ever having to decide these questions!
The one good aspect of today's ruling is that it eliminates nearly all remaining uncertainty about whether Trump can assume the presidency if he wins the 2024 election. By holding that Section 5 enforcement legislation is the sole mechanism by which federal office-holders can be disqualified, the decision forestalls such potential scenarios as a Democratic Congress refusing to certify Trump's election. In theory, Congress could enact new enforcement legislation between now and January 20, 2025 (when Trump would take office, should he win). But that is incredibly unlikely.
The price of certainty is that Section 3 is largely neutered with respect to federal office-holders. Unless and until Congress enacts new Section 5 enforcement legislation, former officeholders who engaged in insurrection will be mostly free to return to power, and try their hand at subverting democracy again.
Perhaps political norms will keep that from happening. But if norms were that effective, Trump probably would never have been elected to office in the first place, and he certainly would not once more be a leading candidate for the presidency today.
Finally, I should acknowledge an error I made in gauging what the Supreme Court was likely to do in this case. At an academic conference on Section 3 held at the University of Minnesota in October 2023, I said that if this issue came to the Supreme Court, there would be a 50-50 chance of a ruling against Trump. It's now obvious I seriously overestimated the likelihood of such a result, an error likely caused by underestimation the justices' concerns about the potential dangers of a "patchwork" of divergent state rulings on disqualification. When commentators err, they should acknowledge their mistakes, not try to bury them and hope everyone forgets. This is my acknowledgement.
NOTE: I will have more to say about the ruling in an article likely to be published within the next few days.
UPDATE: I should perhaps note I filed an amicus brief in the case, which addressed an issue largely left unaddressed by today's decision: whether a criminal conviction for insurrection is a required prerequisite for Section 3 disqualification.
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