Haste and Acrimony Undermine a Unanimous Supreme Court in Trump-Eligibility Case

The Court should have had the courage to say what the law is and apply its plain meaning to the facts.

T he Supreme Court this morning put an end to court challenges to Donald Trump’s qualification for the presidency under Section 3 of the 14th Amendment. It did so the day before the Super Tuesday primaries in Colorado and Maine, two states that have sought to bar Trump from the ballot. Not one justice thought that Colorado had the power to do what it did in a decision full of elastic reasoning. Only the most deluded figures of the legal “Resistance” ever believed this gambit would work.

The Court was right to reverse Colorado’s decision, but the Court got the law wrong, and all nine justices shirked their duty to finally adjudicate whether Trump is covered by Section 3 and whether he engaged in insurrection — both matters the Court could have resolved by clearly construing the legal terms of Section 3, and without a detailed dive into the evidentiary record. The three liberal justices, in a concurrence penned by Justice Sonia Sotomayor, instead argued for leaving disqualification hanging like a sword of Damocles over a Trump presidency, to be deployed at a time of his enemies’ choosing.

The manner in which the Court resolved the case ended up giving the liberals the opportunity for some emotionally cathartic attacks on the Court and Trump even in a decision they joined. That led to their being chastised by Justice Amy Coney Barrett, who agreed with some of their legal critiques but not with the over-the-top rhetoric:

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.

What the Court Did

The unsigned opinion for the majority in Trump v. Anderson concluded that “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal office-holders and candidates,” while leaving states empowered to bar state-level candidates and officeholders under Section 3. The decision was unanimous, although the three liberal justices declined to join the Court’s opinion, and Barrett also declined to join a portion of it. Both Barrett’s concurrence and the Sotomayor concurrence argued that the Court had unnecessarily addressed how the federal government might disqualify Trump if it concluded that he engaged in insurrection.

First, the common ground. The justices all agreed that only the federal government, and not the states, can disqualify candidates and officeholders from federal office under Section 3 — at least unless Congress passes a statute authorizing states to do so. They reasoned that the Constitution creates federal offices, so the background assumption is that states can’t regulate them except if the Constitution gives them an express power to do so — while the presumption is reversed for state control over state elections and state offices.

Given the silence of the 14th Amendment on how Section 3 is enforced, that presumption is doing most of the work in this case. It’s not the first time: In U.S. Term Limits v. Thornton (1995), the Court struck down state-passed term limits for congressional officeholders mainly on the grounds that states can’t impose their own eligibility rules for federal officeholders. But the Court gave little weight to the design of Articles I and II in giving states presumptive primacy over federal elections — a presumption that informed McPherson v. Blacker (1892), which allowed states to decide to allocate electoral votes by House districts, and more recently Moore v. Harper (2023), which limited federal courts in supervising state courts in rulings affecting federal redistricting. All the Court could muster on this score was to say:

The only other plausible constitutional sources of such a delegation [of power to states to enforce Section 3] are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. . . . But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power.

This is what happens when the Court writes too quickly. State courts are bound by the Supremacy Clause, and they are presumptively empowered to enforce the rest of the 13th, 14th, and 15th Amendments (with the arguable exception of Section 2 of the 14th Amendment).

Nobody would argue that state courts can’t enforce, say, the equal-protection clause. They are, however, usually enforcing it against state agents, not the federal government. This is the strongest argument for the line the Court draws. It notes that state courts can bar state candidates from the ballot or remove state officeholders under Section 3, thus affirming decisions reached by the North Carolina and Louisiana courts in 1869. But it also makes clear that a state court clearly could not order a federal officeholder to vacate his or her office. The logical leap, however, is that sitting federal officeholders aren’t going through a state-run election process; candidates are.

Congress can overrule any disqualification decision — whether one made by a state or federal court or even by a prior Congress — by using its express power in Section 3 to grant amnesty to former rebels. The Court complains:

If States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. Perhaps a State may burden congressional authority in such a way when it exercises its exclusive sovereign power over its own state offices. . . . But it is implausible to suppose that the Constitution affirmatively delegated to the States the authority to impose such a burden on congressional power with respect to candidates for federal office.

I don’t see why that’s implausible at all, if states can already do this in state elections.

The Court frets that different states could reach different results, possibly due to different state procedures. But this ignores the role of the Court itself in resolving conflicting state decisions. It is also partly an accidental feature of there being no definitive guidance from the Court on the meaning of Section 3’s operative terms — guidance the Court today yet again declined to provide. It seems to me a sounder answer to these practical concerns to say that Congress is empowered by Section 5 to impose procedural requirements on the states if it sees a problem. Even after today’s decision, it can provide a state-court process if it likes.

Finally, in practical terms, the Court worries that “the disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.” But that’s exactly what the Court invites today. Challenges to ballot access cannot be brought in federal court under federal law, and it would require the passage of a statute for Congress to make such a decision before an election, so the likeliest outcome is now that any challenge to Trump’s qualification will be made in Congress after the election, when the electoral votes are counted. Such an effort could bring us full circle to another January 6. It might also result in a situation in which House Democrats vote against certifying Trump’s election, Trump is sworn in because the Republican Senate disagrees, and we therefore have inaugurated — for the first time since 1860 — a president whose legitimacy is formally rejected by one of the two parties.

The Dissenters

Where the majority went too far for Barrett and the liberals was in suggesting (without ever quite saying) that Section 3 is enforceable only by Congress, or through a mechanism enacted by Congress in implementing legislation. That was the conclusion of Chief Justice Salmon P. Chase in Griffin’s Case (1869), a circuit-level opinion not binding as a precedent of the Court. The possibility that Griffin’s Case was correct, and the reality that it was influential, led Congress to pass the Enforcement Act of 1870, which created such a mechanism that operated until Congress issued a general amnesty a few years later.

It’s sloppy work for the Court to have apparently reached such a conclusion without explicitly saying so, or why. Here’s the relevant part of the Court’s opinion:

Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized, to “‘ascertain[] what particular individuals are embraced’” by the provision. . . . Chase went on to explain that “[t]o accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable. . . .”

The Constitution empowers Congress to prescribe how those 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. . . . Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith. . . .”

Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legislation less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] . . . hundreds of men [were] holding office” in violation of its terms. . . . The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualification, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” [Emphasis added; alterations omitted.]

It’s true that there has to be a determination by someone of disqualification. It’s true that Congress is empowered to decide how Section 3 will be enforced, but that does not necessarily imply that it is enforceable only in ways Congress prescribes, unless Congress exercises the authority to make such avenues exclusive. As the dissent noted, Lyman Trumbull himself never said that Section 3 couldn’t legally be enforced without legislation, only that it wasn’t being adequately enforced in 1869.

The Court’s reasoning is also unclear on whether it is precluding state courts from enforcing ballot-access rules on any ground for disqualification from federal office under the Constitution, or only those created by the 14th Amendment and thus subject to the Section 5 power. What about a candidate who is not a citizen, or won’t meet the minimum-age requirement? If the Court really didn’t want to settle that question, it should have said so.

But what methods of enforcement do the dissenters have in mind?

Ultimately, under the guise of providing a more “complete explanation for the judgment . . .” the majority . . . forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “tailored” to Section 3 . . . ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office. [Emphasis added.]

Now this would be chaos. The prospect of courts just selectively deciding not to enforce acts by an elected president or his subordinates on the theory that they are “insurrectionists” — or, perhaps even worse, stripping him entirely of power while leaving him in office — should be much more alarming to us than pre-election challenges, and maybe even more alarming than having this all resolved by Congress when counting electoral votes. That was the “argument from inconvenience” that Chase cited against allowing federal courts to vacate murder convictions when the trial judge had been an insurrectionist. Nothing in the language of Section 3 requires that the legal system, under the supervision of the Supreme Court, must be precluded from resolving these questions before Americans elect their president. What the liberals seem to anticipate, now that they’re worried that Trump might win the election, is that the charge of “insurrection” can be left a suppurating wound to be reopened at the pleasure of Resistance judges — perhaps waving around the vote of House Democrats.

It’s this posture that allows the dissenters to engage on the cheap in rhetorical barbs designed to please their base in the commentariat without actually taking responsibility for ruling on the merits. So, the dissent opens with a totally unnecessary quote from Chief Justice John Roberts (the likely author of the per curiam opinion) in Dobbs, and later cites Bush v. Gore — both being Bat-Signal to progressives to attack the legitimacy of the Court’s decision. Sotomayor refers to Trump as an “oath breaking insurrectionist” without consideration of whether his office is covered by Section 3 or whether he actually engaged in insurrection. Sotomayor thus manages to suggest that the pro-Trump fix is in even in a decision where she and the other liberals had no quarrel with the outcome:

The majority goes further. Even though all nine Members of the Court agree that this independent and sufficient rationale resolves this case, five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner [i.e., Trump] from future controversy. . . . Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath breaking insurrectionist from becoming President. [Emphasis added.]

The charge that the majority is trying to “insulate” Trump is an explosive one massively disproportionate to the actual disagreement here, which is why Barrett called it out. It’s also just dishonest to say that the Court has acted “to limit how Section 3 can bar an oath breaking insurrectionist from becoming President” when Sotomayor doesn’t identify any way in which her preferred enforcement mechanisms would stop Trump from becoming president — only from exercising presidential power once sworn in.

This is an especially strange tack coming from Justice Ketanji Brown Jackson, who strongly suggested at oral argument that she did not think the text of Section 3 even covers the president.

The Court may have acted from noble motives to protect the constitutional structure, the election, the transfer of power, and the Court itself from what it saw as a patchwork system of ballot-access litigation that would let judges override the people’s choices. Its concerns about using the 14th Amendment to expand state power over the federal government, when it was intended to do the opposite, are well-taken at the general level of constitutional theory.

But at the end of the day, in the haste of all the justices to put this pre-election dispute to bed, and in the determination of the liberals to leave open an avenue for post-election guerilla lawfare against a potential second Trump administration, the Court failed in its duty. It should have had the courage to say what the law is, and applied the plain meaning of Section 3 to the facts. Trump didn’t engage in insurrection. A Court unwilling to define the terms of the law for fear of saying so will inevitably leave the wound open.