If you want to know how a Supreme Court decision is going to be twisted by progressive hysterics, it’s usually a good idea to see how Mark Joseph Stern of Slate reacted. That’s true even on a day like today, when the Court’s decision was unanimous and I’m actually in agreement with some of his legal complaints about its reasoning.
Stern claims that the Trump v. Anderson decision “is actually a 5–4 disaster”:
Five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office.
He argues that
the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion.
. . . The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6.
On Twitter, Stern adds that this decision “dismantled the insurrection clause.” Say what?
First, how does this decision prevent “a criminal trial involving an insurrectionist”? Congress has enacted a specific statute, 18 U.S.C. §2383, under which “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” The per curiam opinion cited that statute with apparent approval (albeit without passing on whether it defines engaging in insurrection more broadly than Section 3 does, a question that would first require construing that definition). It is enforceable only in federal court by federal prosecution. Stern has no basis for suggesting that Section 2383 is now unenforceable.
Second, Stern puts a lot of weight on the majority’s referring to “a particular kind of legislation” even though that phrase appears only in Justice Sonia Sotomayor’s concurrence. The most the five-justice majority says is that “Section 5, which enables Congress, subject of course, to judicial review, to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment.” Later on, in a section of the opinion joined by Justice Amy Coney Barrett, the Court says (with citations to prior Section 5 cases): “Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly remedial. To comply with that limitation, Congress must tailor its legislative scheme to remedying or preventing the specific conduct the relevant provision prohibits.” It’s not even clear what kind of disqualification statute Stern thinks would be struck down, because he doesn’t say what the “made-up rules in Monday’s opinion” actually are. As I read the opinion’s vague language on these points, all the six-justice majority is saying is that enforcement under a federal statute enacted pursuant to Congress’s Section 5 authority would need to meet the same test as any statute enacted to enforce any part of the 14th Amendment under Congress’s Section 5 authority.
Third, Stern says that this decision “empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future.” But he’s missing the fact that there are three main kinds of federal officeholders, and all of them have to go through Congress to get seated. The president and vice president are elected through the Electoral College, and Congress could decline to count their electoral votes if they were actually ineligible for office. Members of the House and Senate are elected, but Congress can still refuse to seat people not qualified (as the Court previously noted in Powell v. McCormack). And appointed officers require Senate confirmation. Those powers of Congress are unaffected by this decision. On page 10 of the slip opinion, immediately before the part about tailored legislative schemes, the Court observes: “It is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. . . . In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3.” That sure looks to me as if the Court approved of the power of Congress to enforce Section 3 itself without enabling legislation, at least as to candidates for Congress.
As my column observed, what the Sotomayor concurrence seems to anticipate is that the president can be disqualified in the course of some civil or criminal proceeding on an entirely different topic challenging the actions of the president or his administration after he’s sworn in. That seems to me a much more alarming prospect than the state-court ballot-access lawsuits the liberals joined in ruling out. I could take a guess why Stern prefers to keep that avenue open, but it simply is not the case that this decision forecloses Congress either from exercising its existing non-statutory powers, or from having the statute on the books enforced by a criminal prosecution. It just boxes out judicial creativity in court cases where Congress has provided no rules at all for addressing the disqualification question in an unrelated proceeding.