In today’s ruling in Trump v. Anderson, all nine justices agreed that states lack the power to enforce section 3 of the 14th Amendment against presidential candidates. In short, all nine justices ruled in favor of Donald Trump on this question.
By a margin of 5 to 4 (or perhaps 5 to 1 to 3), the justices divide rather heatedly on a lesser question that I think would have been unlikely ever to have any practical significance.
Some observations:
1. Let’s start with the per curiam majority opinion for five justices (the Chief, Thomas, Alito, Gorsuch, and Kavanaugh), which seems to me to have come largely from the Chief Justice’s pen.
The per curiam opinion holds that “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.” In Part II.A, it concludes that section 5 of the 14th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the amendment, “is critical when it comes to section 3.”
In Part II.B, the opinion determines that “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.” The text of the amendment “does not affirmatively delegate such a power to the States.” Further, “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…. 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.” Nor is there “any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment.” “Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders,” through the Enforcement Act of 1870 and the previously enacted Confiscation Act of 1862 (a successor version of which “remains on the books today”).
The per curiam opinion also reasons that if states had enforcement authority with respect to federal offices, that authority “might be argued to sweep more broadly than congressional enforcement could under our precedents.” It is in this context that the per curiam opinion spells out a proposition that the four other justices object to—namely, that “[a]ny congressional legislation enforcing Section 3 must … reflect ‘congruence and proportionality’ between preventing or remedying that conduct “and the means adopted to that end.” Slip op. at 10-11 (citing City of Boerne v. Flores (1997).
The opinion also discusses the “patchwork” that would likely result from state enforcement of section 3 with respect to the presidency.
2. In a two-paragraph opinion concurring in part and concurring in the judgment, Justice Barrett joins Part II-B of the Court’s opinion, but states that it is unnecessary for the majority “to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
3. In their 6-page joint opinion concurring in the judgment, Justices Sotomayor, Kagan, and Jackson state that they agree that allowing Colorado to keep Trump off the ballot would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” They object more vociferously than Barrett to what they characterize as the majority’s choice to go beyond what is necessary to resolve the case and to proceed to “decide novel constitutional questions to insulate this Court and petitioner from future controversy.” They complain that the “majority shuts the door on other potential means of federal enforcement.” They don’t agree that implementing legislation by Congress is needed in order to make section 3 operative. Specifically:
[The majority] 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. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law.
They conclude by charging that the majority, “[b]y resolving these and other questions, … attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
4. On the charge by the four justices concurring in the judgment that the majority goes beyond the questions that it needs to decide, the per curiam provides this answer:
So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches. [Emphasis added.]
5. I confess that I’m puzzled by the heat in the three-justice concurrence, but perhaps I’m just not up to speed on the significance of the substantive division. The first example the three justices offer—the possibility that a party might be prosecuted by an insurrectionist and raise a defense on that ground—seems unlikely. And on its second example I don’t grasp which “general federal statutes” a court could invoke to declare someone an insurrectionist. So why are the three justices contending that the majority is trying “to insulate this Court and petitioner from future controversy”? Is there a scenario down the road in which Trump has been elected and taken office in which they would think it proper for a court to hold that he is not lawfully president?
Addendum to point 5: Several savvy observers of different ideological stripes have informed me that the concurring justices are upset that the majority forecloses the possibility that Congress on Jan. 6, 2025 might reject slates of Trump electors. Never mind that the new Electoral Count Reform Act would sure seem to foreclose that. Setting aside the dispute over the scope of today’s ruling, I’d think such an action an incredibly dangerous folly.