Month: February 2024

So for present purposes let’s assume that the Supreme Court allows Donald Trump to remain on the ballot but says nothing to undercut the possibility that he could be prevented from assuming the presidency under section 3 of the 14^th amendment. Do other mechanisms exist to stop Trump from taking office on the ground that he is an insurrectionist disqualified by section 3?

All parties in Trump v. Anderson agree that section 5 of the 14^th amendment, which provides “Congress shall have the power to enforce, by appropriate legislation, the provisions of [the 14^th amendment],” allows Congress to establish statutory methods for the enforcement of section 3. Trump asserts that such federal legislation is the only way the judiciary may enforce section 3. See Trump Brief at 18. Furthermore, Trump maintains (and to my knowledge no one has disputed) that the only such legislation currently in force is the Insurrection Act, 18 U.S.C. § 2383. Accordingly, Trump’s position is that Congress has effectively left “criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders.” Trump Reply Brief at 20.

Continue reading “Disqualified President’s Day: Navigating the Enforcement of Section 3 in a “Dangerously Unclear” Legal Framework”

There is a consensus, based on last week’s oral argument in Trump v. Anderson, that the U.S. Supreme Court will reverse the Colorado Supreme Court’s ruling that Donald Trump must be removed from that state’s primary ballot because he engaged in insurrection within the meaning of section 3 of the 14^th amendment. The question now is on what basis the Court will rule and whether its ruling will leave it up to Congress to decide whether Trump is disqualified under section 3.

To understand the Court’s options, it is helpful to consider the distinction drawn by Professor Derek Muller here between treating this case as primarily presenting a substantive question of constitutional law under section 3 or as primarily presenting a question of election law regarding the scope of state power to adjudicate the qualifications of presidential candidates. In Muller’s view it should properly be analyzed as the latter.

I agree. It seems to me that the question of substantive enforcement is not squarely presented by this case. As noted in my last post, no one argues that states can disqualify a sitting president or, for that matter, any other federal official while in office. Perhaps a state could challenge in court the official acts of an alleged federal insurrectionist, but I suspect not and, in any event, that is not what is involved in this case.

It follows that the questions asked at oral argument regarding the automatic disqualification of a sitting president were largely beside the point. For example, Justice Gorsuch (I think) had a line of questions about whether Trump ceased to be the lawful president on January 7, 2021 and whether his actions were legally ineffective from that point on. Colorado’s counsel suggested that the answer would depend on the operation of the de facto officer doctrine, which I suspect was not comforting to the Court. A more comforting (and I think plausible) answer would have been that an insurrectionist in federal office does not automatically lose the powers of that office and can only be removed in accordance with federal law, i.e., by impeachment (or possibly by mechanisms established by law pursuant to section 5 of the 14^th amendment). That answer, moreover, should in no way compromise Colorado’s position, which is founded on its election powers, not on powers granted by section 3.

For the same reason, though, even if a sitting president were automatically disqualified by section 3, that would not help Colorado. Colorado has no power under section 3 to decide if a federal official is an insurrectionist. Its determination that Trump is an insurrectionist, even if valid and binding for purposes of keeping him off Colorado’s ballot, would in no way prevent him from assuming or exercising the powers of the presidency. Whatever mechanism(s) may or may not exist to prevent Trump from holding the presidency or exercising the powers thereof, they do not turn on the factual findings of a single state judge or the legal conclusions of a single state supreme court.

The real question is what powers states have, whether pursuant to the Presidential Electors Clause of Article II or otherwise, to impose or adjudicate qualifications for presidential candidates. To take a simple example, suppose a state passed a law providing that no candidate could appear on the general or primary election ballot unless at least 40 years of age (or, alternatively, that its presidential electors are prohibited from voting for any candidate who is under 40). Would such a law be unconstitutional because it imposes a qualification beyond that specified by the Constitution?

Professor Muller says yes, stating in his amicus brief (at page 19) that “[s]tates may not add qualifications to presidential candidates.” He cites a footnote in the Supreme Court’s recent decision regarding the authority of states to bind their presidential electors to vote for the winner of the state’s popular election. See Chiafalo v. Washington, 591 U.S. ___, 140 S.Ct. 2316, 2324 n. 4 (2020). The footnote says “if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” Id. (emphasis added).

I read that as leaving the question open (i.e., that the Presidential Qualifications Clause may or may not prohibit states from imposing new requirements), but Muller knows more about this that I do. Furthermore, both the justices and parties in Trump v. Anderson seemed to be operating under the assumption that states lack the power to add qualifications to presidential candidates. Thus, the point seems to be effectively conceded for purposes of this case, even if I (and others, including Professor Akhil Amar) harbor doubts.

That being the case, it should be relatively straightforward for the Court to write an opinion that leaves Trump on the ballot without addressing whether he is ultimately qualified to hold the presidency under section 3. As Trump’s counsel stressed during oral argument, section 3 only provides that a disqualified insurrectionist may not “hold any office, civil or military, under the United States.” It does not prevent anyone from running for office. Moreover, Congress is expressly empowered to remove the disability imposed by section3. Therefore, the Court may simply hold that removing Trump from the ballot now, when any disqualification imposed by section 3 could be removed by Congress before inauguration day in 2025, amounts to imposing an additional qualification in violation of the Presidential Qualifications Clause.

To be sure, it would be equally plausible for the Court to hold that states are free to remove from the presidential ballot candidates they (reasonably) believe to be disqualified under section 3 and that the burden is on the candidates to get a waiver from Congress if they want to be reinstated. However, as suggested in my last post and confirmed by the oral argument, the Court really, really does not want to reach that result for a bunch of institutional and practical reasons. And if the Court can reach the result it wants without straining logic or existing law, it is a pretty good bet that is what it will do.

If that happens the Court will have no need to decide whether Trump is actually disqualified under section 3. It may or may not address or comment on whether there are other mechanisms by which Trump’s eligibility might be adjudicated prior to his assuming office. In my next post I will consider what those might be.

The legal drama of 2024 continues, as the D.C. Circuit held yesterday that former president Trump is not entitled to assert immunity in the federal prosecution for alleged crimes committed in connection with his efforts to contest the results of the 2020 election, including the January 6, 2021 violent breach of the U.S. Capitol. The federal criminal case involving January 6 is not to be confused with the Georgia criminal case related to January 6, or the federal civil case against Trump for January 6, or the federal criminal case against Trump that does not involve January 6, or the New York criminal case against Trump that does not involve January 6, or other New York civil cases against him, well, you get the idea. The former president has his share of legal troubles.

None of these, however, is this week’s headline event. That honor belongs to Trump v. Anderson, which will be argued tomorrow, February 8, before the Supreme Court. As I am sure you know, the Court will be hearing Trump’s appeal of the Colorado Supreme Court’s decision that he may not appear on that state’s Republican primary ballot because he is disqualified from holding the presidency, under section 3 of the 14^th amendment, by virtue of his having “engaged in insurrection.”

Trump v. Anderson is a very complicated case, involving a lot of difficult and novel issues. There are several paths the Court could choose to go down, and on each of those paths are one or more forks in the road that branch off in different directions. This makes it very difficult to predict how the Court will decide the case, although most observers, myself included, think it is most likely it will not affirm the decision to remove Trump from the ballot.

That prediction rests more on institutional incentives than legal analysis, though. The Court, particularly Chief Justice Roberts, will not want to be seen as depriving voters of the opportunity to support the candidate of their choice. At the same time, the Court (at least most of the justices) will not want to condone Trump’s behavior and will probably want to avoid taking a position, if possible, on whether his conduct amounted to “engaging in insurrection.” This implies a compromise decision where the Court takes one of many “off-ramps” that allow it to avoid the merits of the insurrection issue, while allowing Trump to remain on the ballot.

As far as it goes, this would be a “pro-Trump” result. But the Court can avoid the appearance of political bias in various ways. One is to act unanimously, or close to it, which means attracting support from its three Democratic appointees. A second (related to the first) is to make clear in its decision, as did the D.C. Circuit in its immunity opinion, that Trump’s conduct (excuse me, Trump’s “alleged” conduct) in connection with the 2020 election and January 6 went far beyond what was lawful or acceptable. A third (also related to the first) would be to leave open the question whether Trump will ultimately be qualified to hold the presidency under section 3 and possibly to lay out one or more mechanisms by which that issue could be resolved in the future. That would open a whole other can of worms, which we will have to leave to a future post.

Finally, Trump will undoubtedly be asking the Court to review the D.C. Circuit’s immunity decision (under the D.C. Circuit’s order, he has only until February 12 to request Supreme Court review if he wishes an automatic stay of the mandate). While the criminal prosecution and the section 3 disqualification case are legally distinct and unrelated, a speedy (and hopefully unanimous) rejection of Trump’s claim of immunity from criminal prosecution would go a long way toward protecting the Court from claims of political favoritism.

While these speculations are based on the political and practical realities, they do not exist in a vacuum separate from legal analysis. Affirming the D.C. Circuit’s decision on immunity (or simply denying Trump’s petition for certiorari) would be legally correct and it would be difficult to justify any other result. In contrast, affirming the Colorado Supreme Court’s decision would be much more problematic from the standpoint of existing legal doctrine.

The legal complexities of Trump v. Anderson are laid out in a series of lengthy posts by Professor Marty Lederman at Balkinization (see here for the first of many). I agree with many of the points Lederman makes, while others, such as on mootness and statutory jurisdiction, sound plausible but I have not thought much about. There is one point in particular that I want to highlight, one that I have not seen anywhere else—except on my twitter (or whatever we are calling it now) feed.

I am not sure if this case has anything to do with whether section 3 is “self-executing.” Whatever power Colorado has here stems from its authority to determine the manner of appointment of presidential electors, not enforcement of section 3.

— Mike Stern (@mls1776) December 25, 2023

As I noted there and in various other tweets, it has generally been accepted that one key issue in Colorado and other states where Trump’s ballot access has been challenged is whether section 3 is “self-executing.” There is some confusion about exactly what “self-executing” means, as Trump claims he is not disputing that section 3 is self-executing, but merely that it can only be enforced pursuant to specific congressional legislation. See Trump Reply Br. at 19-20. This strikes me as a distinction without a difference. In any event, the bottom line claim is the same- section 3 can only be enforced to the extent that Congress so provides through legislation under section 5 of the 14th amendment.

But, as Professor Lederman explains here, Colorado is not enforcing section 3, which is something states clearly cannot do with respect to federal officials, most obviously including the president. No one would argue, I hope, that a state could declare the sitting president, whether it were Trump, Biden or anyone else, to be disqualified under section 3 (or any other constitutional provision) and therefore proceed to treat the president’s actions as null and void. Instead, what Colorado is doing is applying its own election laws, which (according to the Colorado Supreme Court) require it to remove from the ballot candidates who are ineligible for office for any reason, including violation of section 3. Now it may (or may not) be that Colorado is constitutionally forbidden from exercising this power with respect to presidential candidates who are in fact eligible to hold office. In that case Trump’s alleged eligibility under section 3 would be a defense to Colorado’s action, but that would not make Colorado’s action an enforcement or implementation of section 3.

One more observation about the “self-execution” issue. Trump’s position is that the only method currently authorized by Congress for enforcing section 3 is the Insurrection Act, a criminal statute currently codified at 18 U.S.C. § 2383. This strikes me as being in some tension with his position that he is absolutely immune from criminal prosecution for his actions relating to the 2020 election and January 6. Perhaps someone will ask his counsel about that tomorrow.

Finally, I will note that I do have one strong, although perhaps not too significant for present purposes, disagreement with Professor Lederman. He contends that members of Congress are “officers of the United States” and hold “offices under the United States” at least for some constitutional purposes. This is an arguable (though imho mistaken) proposition, and it is certainly true that there has been controversy about this throughout our history, including at the time of the framing and ratification of the 14th amendment. However, Lederman goes too far when he suggests that the Blount case was not generally understood to stand for the proposition that members of Congress are not “civil officers of the United States” and therefore not subject to impeachment. As I pointed out to him on twitter (or whatever), this is just plain wrong, as all the early treatise writers (Tucker, Rawle, Story) so understood this to be the rationale of the Blount case. As do more modern writers, such as Professor David Currie and Lederman’s colleague at Georgetown Law School, Professor Josh Chafetz. See Josh Chafetz, Congress’s Constitution 149 (2017) (“The Senate decided that members of Congress were no ‘civil Officers’ and therefore not impeachable; instead, they expelled [Blount] by a vote of twenty-five to one.”).

Further exploration of that topic, however, will have to wait for another day.