-
Commentary
Kayvan Farchadi serves as counsel at Citizens for Responsibility and Ethics in Washington or CREW. Prior to joining CREW, Kayvan worked as a white-collar and regulatory associate at Covington and Burling LLP. Kayvan received his J.D. from George Washington University Law School with high honors and his B.A. from the College of William and Mary.
By Kayvan Farchadi
April 16, 2024, 10:30 AM
Until March 4, 2024, states could enforce the U.S. Constitution by preventing all disqualified presidential candidates from appearing on their ballots. In its decision in Trump v. Anderson, the Supreme Court created an exception to this rule for Section 3 of the Fourteenth Amendment, the provision preventing government officials who engaged in insurrection from serving as Commander-in-Chief of the armed forces. In the face of an oath-breaking insurrectionist taking over one of America’s two major political parties and seeking the presidency for a second time, the Supreme Court removed states’ power to enforce this constitutional safeguard, without relying on “just one particular rationale.”
But even though the Court created an extraordinary exception to states’ ability to enforce the U.S. Constitution and manage their state-run elections for federal office, Mr. Trump remains adjudicated to be disqualified from serving in any state or federal office, including the Office of the Presidency.
The decision in Anderson did not address the Colorado judiciary’s determination, after a five-day trial, that Mr. Trump engaged in an insurrection. Instead, the Court ruled that—even if he did—states must place disqualified oath-breaking insurrectionist presidential candidates on state-run primary election ballots unless Congress does something (it’s not quite clear what) that authorizes states to enforce Section 3 against such candidates, and that legislation is then reviewed again by the Court.
To reach this decision, the Court abandoned the supermajority’s claimed commitment to originalist and textualist modes of legal interpretation several times over. For example, the Court opined that a criminal conviction under 18 U.S.C. § 2383, the federal criminal insurrection statute, may be an example of Congress exercising its authority to implement Section 3.
While the Court has thankfully left the door open (for now) to some way of enforcing Section 3 against an insurrectionist presidential candidate, the assertion that 18 U.S.C. § 2383 enforces Section 3 does not square with originalist and textualist modes of legal interpretation.
The Fourteenth Amendment’s text does not grant Congress any exclusive role in effectuating or adjudicating its disqualification; instead, Section 3 grants Congress the exclusive power to grant amnesty from the disqualification with a super-majority vote. However, amnesty from a conviction under the insurrection statute must come through the President’s pardon power, or perhaps the federal judiciary—not Congress. It is not clear how Congress can permissibly delegate its textually-committed amnesty power under Section 3 to the executive branch.
The Court also was not bothered by the broad contemporary public understanding at the time Section 3 was drafted that it would bar Robert E. Lee (previous service as a U.S. Army officer) and Jefferson Davis (previous service as a Member of Congress) from future federal office,1See Brief of Amici Curiae American Historians in Support of Respondents, Trump v. Anderson, 601 U.S. 100 (2024), at 27–30. nor the fact that thousands of former Confederates requested amnesty from Congress, understanding that Section 3 applied to them, despite not being convicted of any crime.2See The National Archives, “Preliminary Inventory of the Records of the Select Committee on Reconstruction, 1867–71,” compiled by George P. Perros (1960), available at http://www.citizensforethics.org/wp-content/uploads/2023/06/Confederate-Amnesty-Petitions-PI-0233_Select-Committee-on-Reconstruction-1867-71.pdf.
And, there is the inconvenient fact that the Second Confiscation Act, which became 18 U.S.C. § 2383, was originally passed years before Section 3 was enacted. It makes little sense to suggest Congress can pass a law pursuant to authorities granted in a future amendment.
There are many other inconsistencies in the Court’s assertion that the criminal insurrection statute is valid Section 3 enforcement legislation. Why didn’t Justice Chase’s 1869 opinion in Griffin’s Case, which the Court cites approvingly, look to this statute as Section 3 enforcement legislation, instead noting that the “proceedings, evidence, decisions, and enforcement of decisions” relating to Section 3 are unclear? How should we interpret the statute’s criminalization of “incitement” in light of the First Amendment, given that First Amendment jurisprudence appropriately treats statutes and equivalent constitutional provisions differently when potential conflicts arise?3See generally Brief amici curiae of Floyd Abrams, et al., Anderson, 601 U.S. 100.
While it is heartening to know that, absent some further act of Congress, the Court has possibly left the door ajar to accountability for insurrectionist presidential candidates, there is a risk in taking too much heart in their narrow path. Despite its dicta in Anderson, the Court could strike down the criminal insurrection statute once squarely faced with the question, and in Anderson, it noted that it may do so.
The Court’s inconsistent and poorly reasoned decision further tarnishes this Court’s dwindling legitimacy and highlights a fundamental rule of law issue facing the United States: this Supreme Court would rather subvert our post-Civil War system of government than apply the U.S. Constitution as written to Donald Trump.
But despite Anderson’s subversion of Section 3 enforcement, Trump remains legally disqualified from serving in any state or federal office, including the presidency. The Court’s decision does not change the reality that Mr. Trump is an adjudicated insurrectionist. Every fact-finder that has analyzed the events of January 6 has found that the attack on the Capitol was an insurrection against the Constitution. Moreover, each fact-finder concluded that former President Trump engaged in that insurrection by gathering the mob in Washington to disrupt the peaceful transfer of presidential power for the first time in American history. The decision, however, makes enforcement of Section 3 disqualifications against insurrectionist presidential candidates more difficult, putting our democracy further at risk by mandating that this question be resolved after the election, perhaps even after Mr. Trump takes the reins of our government again.
References:
Related