Amendment XIV

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Section 3.

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.

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Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Justice Amy Coney Barrett wrote a non-dissenting dissent to the per curiam order in Trump vs Anderson. In it she agreed with the all the justices (9-0) that no state official or proceeding could deny a ballot position for anyone seeking federal office, including that of the President of the United States (i.e., enforce Section 3 of the 14th Amendment to the Constitution of the United States). But she did not want to expressly sign on to a ruling that an act of Congress would be required to disqualify anyone from holding federal office for insurrection.

I join Parts I and II–B of the Court’s opinion. I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. 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.  [emphasis added]

I will explain what Justice Barrett is saying by using an old-fashioned Western movie as a metaphor:

John Wayne rides across the Rio Grande into Mexico chased by a posse comprised of a Texas sheriff and 10 deputized cowboys. When they all arrive on the other side of the river they are met by the Mexican Federales who tell the posse to turn around and go back across the Rio Grande because they don’t have any jurisdiction in Mexico. For the moment Wayne is saved. Unknown, of course, is how the Mexicans regard Wayne’s status or his “crimes”. But the Texans are not going to have any authority over Wayne anymore.

For Justice Barrett, Colorado (and any other State) finds itself on the wrong side of the Rio Grande trying to disqualify anyone for federal office as an insurrectionist. End of story. And because eight other justices all agreed on that, we should all be happy for Wayne (or any presidential candidate), and be done with it. If you think Wayne did something wrong — well maybe that will be dealt with by the Federales in the next scene of the movie. If you think Wayne did nothing wrong — well, at least he is safe from the Texans’ noose. Justice Barrett says the next scene hasn’t been written and the five justices who signed on to the entire opinion, who gave structure to the next scene, should not have done that.

So what is the structure of the next scene that the justices should not have written?

In Section II-A to the opinion (which Justice Barrett does not join), the Court sets out the history of the 14th Amendment, the discussions around it when it was being adopted, and specifically the role of Illinois Senator Lyman Trumbull. Trumbull was a key player in the adoption of the 14th Amendment, and his characterizations of the Amendment are quoted. Of note, Trumbull was the Chair of the Senate Judiciary Committee, introduced the Civil Rights Act of 1866 and argued successfully for Congress to override President Johnson’s veto of the Act. He said of the Act that — “If the bill now before us… cannot be passed, then the constitutional amendment proclaiming freedom to all the inhabitants of the land is a cheat and a delusion.”

The Amendment was ratified in 1868, and as noted in the opinion of the Court:

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. Cong. Globe, 41st Cong., 1st Sess., at 626. 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.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by §5 of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 385 (1982); see 16 Stat. 143–144.

The Senate’s website relates what laws were passed to give meaningful effect to both the 14th Amendment and the Civil Rights Act of 1866. All of these laws demonstrate the thesis of the Court majority that the 14th Amendment was not self-enforcing and required additional action by the Congress:

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. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). 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.” Cong. Globe, 39th Cong., 1st Sess., at 2768. 

Note that in the Senate’s own description of laws passed to enforce the 14th Amendment there is an absence of any law that enforces Section 3.

So what is upsetting Justice Barrett? In my opinion it is the combination of three things:

1. The majority expressly ruled out any enforcement of Section 3 other than an act of Congress.
2. The majority of the Court highlighted the absence of any existing enforcement mechanism adopted by Congress for Section 3.
3. The majority of the Court highlighted that any enforcement action by Congress in the future would be “subject of course to judicial review”.

This, of course, means that if Congress were to pass a new law, the Court might be (likely would be) called upon to enter the controversy again. Correctly, Justice Barrett sees that Court’s decision does little to quell the ongoing Lawfare. It is but one fire put out. But there are more fires to come. As if to underline that point, the three progressive justices sign on to a disturbing statement:

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment. [emphasis added]

What are “other potential means of federal enforcement”? There is the Special Prosecutor case in DC which seeks a conviction of President Trump for obstruction of a proceeding (but not insurrection). Would a conviction (assuming the obstruction charge survives the Court’s future holding in Fischer v United States allow a judge to “bootstrap” the conviction into a Section 3 disqualification of President Trump? The three progressive justices appear to not want to foreclose that possibility. The majority decision would foreclose it even if the obstruction charge passes Court scrutiny and President Trump is convicted. That is not a popular position with progressives who have signed on to “show me the man and I will find you the crime” jurisprudence.

The reality is that in a perfect legal world Section 3 has already been written out of the Constitution. Adopted in 1866 and ratified in 1868 the Civil War was only a few years in the past. In 1870 when the first enforcing laws were passed Section 3 implementation was curiously missing. But for a single instance, earlier in 1868, of a governor barring a candidate for federal office and a Congressional committee ratifying the governor’s action, there has been no Section 3 disqualification*.

*3 We are aware of just one example of state enforcement against a would-be federal officer. In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because—in the Governor’s view—Section 3 made Christy ineligible to serve. But the Governor’s determination was not final; a committee of the House reviewed Christy’s qualifications itself and recommended that he not be seated. The full House never acted on the matter, and Christy was never seated. See 1 A. Hinds, Precedents of the House of Representatives §459, pp. 470–472 (1907).

Section 3 was included in the Amendment as part of the passions of the 1860s and died in the 1870s as those passions cooled.

The majority of the Court correctly concludes that if Section 3 is to be resuscitated, only Congress can do that — not a federal prosecutor, not a federal judge. Justice Barrett doesn’t say that is incorrect, but she wishes that the majority had not highlighted it. Incorrectly, Justice Barrett hopes that if we just don’t notice, it will somehow go away.

But it won’t, because progressives (regressives) don’t want it to. They want Reconstruction all over again, it’s just that now it is not the States that unsuccessfully seceded from the Union, but Donald Trump and all of his “deplorable” supporters, whom are to be subject to federal control and disqualified from any position that could translate to opposition power. And so this Court has two pending cases (with likely more to come) that put fidelity to the rule of law front and center:

1. President Trump’s claim of immunity based on several grounds but most compellingly, for ordinary Americans, upon res judicata. He was impeached and the Senate did not convict. Case closed. In our constitutional form of government we want to avoid the ability of individual prosecutors and district judges to manipulate presidents with implied or real threats of prosecution, unless and until both the House and Senate overwhelmingly support removal from office and exposure to prosecution.
2. January 6 defendants (including, as it happens, President Trump in the DC case) claim that the Section 1512 (c)(2) charge is inapplicable to protests (and even riots) involving non-evidentiary proceedings like confirming justices, confirming electoral votes, or passing legislation. If the Court agrees with the petitioners, then only a few individuals charged for anything related to January 6 will have committed felonies — and certainly not insurrection. (See my post Seeking Justice In A Cotton Brief for a detailed argument of the issues.)

How does Trump v Anderson forecast the thinking of the Court in these other cases? In my opinion it’s 3-3-3. Three justices are prepared to find for Trump and the January 6 defendants in both cases (Thomas, Alito, and Gorsuch). Three progressive justices are going to have to be dragged kicking and screaming, if at all, to support the defendant’s constitutional rights (Sotomayor, Kagan and Jackson). Chief Justice Roberts wants to stave off Democrats “court-packing schemes”; Justice Kavanaugh is still suffering shell-shock from his confirmation process and may be reluctant to be the 4th or 5th vote if either case is going to be 5-4 decision; and Justice Barrett holds the key to whether the cases are 6-3 either for or against the defendants in either case. Barrett expects and is expected to be on the Court for a very long time. She clearly favors incrementalism over drama. She is acutely aware of the tensions underlying our national paroxysms and wants the law to be a moderating, not energizing, force.

It would not be surprising to me if, after oral arguments in late April on both cases, that, however justices communicate with one another, there might be an agreement on a per curiam order in the Fischer case, just as in the Trump v Anderson, to overturn the DC Circuit decision and eliminate the Section 1512(c)(2) charges. Those charges are unprecedented and constitute a novel use that could work against any political actor. The order will be brief in its justifications and probably centered on the chilling effect such charges can have on all political points of view. Every effort will be made to avoid dissent. That decision will be in May/June. As part of the agreement, the Trump immunity case decision will probably be deferred until after the November election, but the stay on the DC case will remain.

What will the immunity decision be? Trump wins because presidents can’t (shouldn’t) be personally subject to threats by prosecutors or judges in either the making of policy decisions, or for engaging in conduct that both the House and Senate do not overwhelmingly believe require removal from office. But the timing of the announcement is not without political impact, thus the delay on the decision. (I would expect the vote to be 6-3 or greater because, as in the 1512(c)(2) case, it is a weapon that could also be used against progressives just as easily as against conservatives.) And, I also think it will be a mistake if the Court does delay issuing its decision.

There is already discussion of Lawfare against a Trump victory being certified by the Congress in January 2025. This suggests that there could be many more cases piling up for the Supreme Court after the election, possibly regardless of the vote. Does a Court victory for Trump on immunity turn down the political heat or ramp it up if announced between November and January? After January 1? I don’t see how it is going to meet Justice Barrett’s preference that “writings on the Court should turn the national temperature down, not up.”*  So better sooner than later.

*Barak Obama could turn the heat down if he filed an amicus brief supporting Trump’s immunity as he has some exposure for acts as president if Trump loses. But I think he believes he is protected from that and wants to keep the pressures on Trump through Lawfare.

What really is upsetting Justice Barrett (IMO) is that law is being used by progressives in ways that put the Court on the spot, that make Court decisions more significant in the political sphere than she would prefer. She cannot control that, and so delaying Court decisions that favor Trump (as I believe they should and for the reasons previously discussed) do not “turn the temperature down”. Barrett, the other “conservative” justices, and even the progressive justices need to bite the bullet and make it clear that Lawfare, as opposed to appealing to voters for support, is not going to be rewarded by the Court.