Stanford Conference on the Presidency: Trump v. Anderson and Section Three Disqualification
Last May I joined a group of scholars at Stanford Law School to discuss the various court cases involving former President Donald Trump. My Panel focused on Section Tree of the Fourteenth Amendment and the Supreme Court's decision in Trump v. Anderson. This may seem like old news, but now that the Court's term is over, a number of scholars have looked back at the Court's decision in Trump v. Anderson as somehow non-originalist or anti-originalist. In my comments at the Stanford conference, I explain why this is not the case. The Court decision is perfectly consistent with what we know about the history and context of Section Three.
My thanks to Michael McConnell and to the Stanford Constitutional Law Center for inviting me. It’s great to go another round with Derek and Mark on Section Three.
It’s odd talking about a provision that a year ago no one knew about, six months ago everyone was writing about, and today most people have forgotten about—at least for the moment.
I think we should go on thinking about Section Three. And not just because its historically important as part of the Fourteenth Amendment. But also because presidential disqualification remains a possible option somewhere down the road, for example when Congress counts the electoral votes this coming January 6th.
If Congress tries to disqualify votes for Donald Trump, the case is going right back to the Supreme Court, where it will most likely be decided by the same majority that wrote the per curiam opinion in Trump v. Anderson.
So, I think it’s worth taking a close look at that opinion and what it tells about the possible future enforcement of Section Three disqualification.
The per curiam opinion closes some doors but leaves others open—actually it leaves open a lot of possible outcomes, including the conclusion that the office of President is not clearly covered by the text, and whether Section One's freedom of speech limits what counts as engaging in insurrection and rebellion. The closed door, of course, involves enforcement in the absence of congressional legislation. My fellow panelists may disagree but, as I’ll explain, I think that’s a done deal.
Just as interesting as what the majority concluded is how they went about drawing those conclusions. So let me briefly introduce Section Three and then dive into the opinions.
History
Most of the five sections of the Fourteenth Amendment were drafted in the early months of 1866 by the 15 members of the Joint Committee on Reconstruction. Section Three of the 14th amendment, however, is an exception. This section was added at the last minute, after the House had already approved the Joint Committee’s original draft.
Section Three of that original draft prohibited rebels from voting for federal Representatives or for presidential electors until the year 1870. That provision was broadly criticized by both Republicans and Democrats, with critics inside and outside Congress pointing out that the states could evade its restriction on electors simply by choosing to appoint electors rather than voting for them—as some states already did.
The House accepted the partially flawed amendment, but senate republicans wanted changes.
Senate Republicans decided to meet in a private caucus where they tasked a small subcommittee with coming up with a better version of the amendment. The result was the addition of the citizenship clauses to section one and a completely new version section three.
The new version banned former rebels from holding certain offices rather than banning rebels from voting for certain offices.
For those that have not memorized the text, it reads:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
There are a lot of mysteries here. Why does the text expressly name Representatives, Senators and Presidential electors, but does not expressly name the office of President? What counts as an “insurrection or rebellion?” Finally, is the provision self-enforcing or does it require congressional enforcement by way of Section Five?
The Court’s decision in Trump v. Anderson left most of these questions unanswered.
Every justice agreed that it was constitutionally inappropriate to allow states to disqualify federal officials. But this is a structural federalism point that has little to do with the actual text and meaning of Section Three. That is a feature not a bug, of course, because it allowed the Court to issue a unanimous opinion in a politically divisive case.
The per curiam opinion, however, went beyond this structuralist point and engaged the actual history and meaning of Section Three. It did so, the author explained, because there were a number of reasons why they thought the Colorado court had erred. The structural point was only one reason, and it might have been the weakest of the bunch since it was based on general principles and not the original understanding of the text.
The majority then proceeds to present the first originalist account of Section Three. They begin by laying out the general principles of the Fourteenth Amendment that informed the framers and ratifies of section three.
Listen carefully to how the Court describes those basic principles: Here are the topic sentences of the first three paragraphs.
Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy.”…
Section 1 of the Amendment, for instance, bars the States from “depriv[ing] any person of life, liberty, or property, without due process of law” or “deny[ing] to any person . . . the equal protection of the laws.” . . .
Section 3 of the Amendment likewise restricts state autonomy, but through different means.
In these three sentences, the majority stakes out an understanding of Section Three quite different from that presented in the briefs of the pro-disqualificationists.
Those briefs describe Section Three as responding to the need to restrict bad people. The majority describes section three as responding to the need to restrict bad states. These are not the same thing. Bad people can include presidential candidates. Bad states do not. Bad states make problematic choices for presidential electors, as well as for state representatives and the state legislature.
As if to underline this concern with local state decision making, the majority then cites two specific examples of what Section Three was drafted to address. First they cite Thaddeus Stevens “warning that without appropriate constitutional reforms “yelling secessionists and hissing copperheads” would take seats in the House.” Next they cite Senator Howard “lamenting prospect of a “State Legislature . . . made up entirely of disloyal elements” absent a disqualification provision.” These are the model examples of the targets of Section Three, and they support the majority’s insistence that Section Three, like Section One, was about restricting state decision making.
If the majority is right that the framers of section three were focused on pro-rebel local elections, then this could explain the otherwise odd omission of the office of President from the opening enumerated list of protected offices.
This was exactly the point that Justice Jackson made during oral arguments. Jackson pressed Trump’s lawyer to address whether Section Three was about presidential elections or instead was focused on “senatorial elections, representatives, the sort of more local concerns.” Twice, she asked the lawyer to address whether “Section 3 was about preventing the south from rising again in the context of these sort of local elections as opposed to focusing on the Presidency?” Jackson specifically pointed to the text as seeming to reflect this focus. Again, to quote Justice Jackson:
[W]hy didn't they put the word "President" in the very enumerated list in Section 3? . . .
I guess that just makes me worry that maybe they weren't focusing on the president and, for example, the fact that electors of vice president and president are there suggests that really what they thought was if we're worried about the charismatic person, we're going to bar insurrectionist electors and, therefore, that person is never going to rise?
Justice Jackson, it appears, had read my amicus brief. Unfortunately, Trump's lawyer had not. Instead, the lawyer trotted out an exchange in the Senate where a member tells Reverdy Johnson that the presidency is covered.
Justice Jackson wasn’t impressed: Even if one or two senators thought the presidency was covered, “doesn't that at least suggest ambiguity?”
Words that warm my heart.
Whether Justice Jackson held this view herself or later changed her mind is impossible to know. What we do know is that five Justices describe Section Three as focused on decision-making at a local level. By doing so, whether they meant to or not, the majority left the door open to eventually ruling that the text restricts the states' choice of electors and not the nation's choice of President.
And, if and when they do so, they can quote their opening analysis in Trump v. Anderson.
A Severe Penalty
So that door remains open.
The door of self execution, I believe, is closed. Future enforcement of any kind against a federal official will require congressional legislation.
They quote Trumbull’s declaration that enforcement legislation was necessary because the text makes “no provision” for its own enforcement. They describe congressional legislation as critical in order to provide proper process for determining whether an accused insurrectionist is disqualified. And, of course, most importantly, the concurring justices expressly understand the majority as having closed this particular door. That’s why they concur rather than joining the majority opinion.
But even more importantly, I think, is why the majority insists that enforcement legislation is required. Pro-qualifications insisted section three was a self-enforcing qualification no different than the requirement presidents be at least 35 years old.
The majority, however, denied that section three was a simple qualification. Section Three, to quote the majority, “imposes . . . a severe penalty.”
Severe penalties can be imposed only upon those found guilty and subject to punishment—and a finding of guilt requires adequate and fair process. If you have any doubts, see the words in Section One.
Such procedures need to be clearly defined and promulgated in a an act of legislation. This is why the per curium describes Section Five as “critical” to the constitutional enforcement of Section Three. It empowers Congress to pass legislation establishing fair procedures for determining whether someone is subject to the severe penalty of disqualification.
This legislation, moreover, will be subject to judicial review in order to ensure it conforms to the Boerne standard of congruence and proportionality. For example, severe penalties should be imposed only for those offices clearly covered by Section Three. It should include only those activities that meet the judicial definition of “insurrection or rebellion.” Finally, enforcement of Section Three must be consistent with section one and the newly established privileges and immunities of citizens to exercise their rights of freedom of speech and assembly protected by the privilege and immunities clause.
In other words, it is because disqualification is a severe penalty that the Constitution demands properly crafted enforcement legislation.
In Conclusion
Unanimity is great, as far as it goes. But I’m glad the majority went further. We don’t know everything about Section Three—it’s too soon and the scholarship remains in its infancy. But the history is clear in regard to some matters. The text, like the rest of the amendment, is centrally concerned with problematic state level decision-making. Whether the passage of state black codes, or state level attempts to send former rebels back to Congress. Whatever future litigation occurs in regard to Section Three, it must be consistent with this central purpose.
It is also important, critical you might say, to immediately announce the need for enforcement legislation. This is not a matter that should wait until partisans in Congress try a last minute disqualification of Donald trump on January 6th.
Neither the country, nor the court, nor the Constitution should have to endure that kind of chaos.
Thank you
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