The Volokh Conspiracy
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Section Three Is Not A "Political Question"
[Note: This is the seventh in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first six essays can be found here, here, here, here, here, and here.]
Are questions of the proper legal interpretation and application of Section Three of the Fourteenth Amendment nonjusticiable "political questions" – that is, questions that federal courts lack legal power to decide?
The simple answer is no.
The Constitution's text does not commit Section Three issues to the political judgment and discretion of the political branches of the national government. Questions concerning the legal meaning and application of Section Three involve standard and familiar questions of interpretation of the text, structure, and history of the Constitution, a task commonly engaged in by courts. Nothing about interpreting Section Three suggests an absence of standards for courts to employ in performing this task. Nothing about interpreting Section Three requires courts to make political policy judgments inappropriate for courts. Nothing about judicial resolution of Section Three questions implies a lack of respect due a coordinate branch of government, would disrupt a settled and vital political decision of government previously made, or somehow create an unacceptable "embarrassment" of multiple conflicting pronouncements by the national government. In short, none of the factors the courts have identified as relevant renders Section Three issues nonjusticiable political questions.
We thought this point sufficiently clear that we addressed it only briefly, near the end of our forthcoming article, The Sweep and Force of Section Three:
[I]t would be wrong for courts to refuse to decide cases, otherwise lawfully within their jurisdiction, concerning Section Three on the pretense that such matters are "political questions." Outside of certain exercises of power to exclude, expel, or impeach and try, committed to each House's judgment, Section Three is enforceable by the judiciary as well as by other officials. Section Three's terms embody rules and standards, enforceable as any other constitutional provision is enforceable. There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial. (Ms. at 125).
We made the same point in a footnote, earlier in the article, in the course of discussing the circumstances in which each house of Congress possesses unique and arguably final authority under Article I, Section 5 of the Constitution to apply Section Three's disqualification rules to exclude or expel members of that house. Aside from those circumstances, Section Three issues properly can be decided by courts:
We emphasize that questions of interpretation and application of Section Three are not in general "political questions" that cannot be decided by federal courts, simply because they have political consequences. Where the Constitution supplies a rule, and the rule's application is not committed by the text of the Constitution to the judgment of one of the political branches, the courts are not disabled from deciding a case based on that rule. We simply think that the provision committing to each house the power be the "Judge" of the "Elections, Returns, and Qualifications" of its own Members does not permit judicial review of determinations of each house that properly fall within these constitutional categories." (Ms. at 30, n. 95.)
Some federal courts, however, and even some state courts (where the political question doctrine's applicability is more disputed), have issued confused and confusing opinions on the doctrine in Section Three cases. At the risk of taxing readers' patience, we explain here a bit more fully why Section Three issues are not political questions. We note that in the Trump v. Anderson litigation, both the Colorado District and the Colorado Supreme Court found Section Three to be justiciable and Trump has not pressed a political question argument in his Supreme Court merits briefs.
The standard formulation of the Court's "political question" doctrine comes from the classic case of Baker v. Carr:
Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
We have added the bracketed numbering of the various Baker v. Carr factors.)
More recent decisions of the Court have emphasized (almost to the point of exclusion of the others) the first two factors: whether the Constitution contains a "textually demonstrable constitutional commitment" of political or policy discretion concerning a matter to Congress or the President (such as an impeachment trial, as in Walter Nixon v. United States) or whether an issue lacks "judicially discoverable and manageable standards" to apply as law (such as political gerrymandering claims, as in Rucho v. Common Cause). The Court has also emphasized that a federal court has a duty to decide cases and issues properly it, even ones it "'would gladly avoid,'" and that courts "cannot avoid their responsibility merely 'because the issues have political implications.'"
Questions involving the meaning of Section Three are not political questions under these criteria. Section Three's application is not assigned by any provision of the Constitution to the exclusive political power or discretion of one of the political branches of the national government (other than, as noted, in the context of other congressional powers such as each house's power to exclude and expel its own members). This is especially plain in the context of presidential elections. Article II, section one of the Constitution specifically provides that states –state legislatures enacting state laws; and state courts and election officials in faithfully applying such laws – are assigned the constitutional power to choose the "Manner" of selecting their state's allotted number of electors for President and Vice President. The text does not explicitly refer to any Congressional power over presidential elections, let alone provide any "textually demonstrable constitutional commitment" of authority in such matters to Congress's exclusive political judgment.
To be sure, Congress, by two-thirds majority vote of both houses, can remove a disqualification from office imposed by the legal operation of Section Three's first sentence. But this scarcely assigns all matters of Section Three interpretation and application into Congress's hands. Quite the reverse: Where Congress is given exclusive political power and discretion in such matters – the power to remove disqualifications that arise in consequence of Section Three's first sentence – the text says so. Plainly, no such discretion is granted Congress as to whether a disqualification exists in the first place.
And so on. Congress's power under Section Five of the amendment "to enforce" Section Three (and other parts of the amendment) does not create a political question, just as Congress other enumerated powers (the Commerce Clause, etc.) do not. The Twelfth Amendment, which provides for a joint session of Congress where the votes of electors "shall then be counted," does not constitute a textual commitment of Section Three questions to Congress. Indeed, it is not clear that its terms give Congress any substantive power to judge the propriety or constitutionality of votes submitted by electors.
As we explain in our article, multiple actors have duties and responsibilities that may involve interpretation and application of Section Three (Ms. at pp. 22-35). Each such actor or body possesses the duty, and the authority, to faithfully interpret and apply the Constitution within the sphere of its responsibilities. This includes state and federal courts, which have adjudicated Section Three questions in the past and continue to do so. Nothing in the Constitution's text commits these issues to another branch in a fashion that excludes judicial authority.
Even more plainly, Section Three issues do not lack "judicially discernible and manageable standards" to apply as law. To the contrary, Section Three presents classic issues of legal interpretation that involve examination of "textual, structural, and historical evidence," as the Court put it in Zivotofsky. Much of our article is devoted precisely to examining such evidence: evidence that the text enacts a self-executing legal rule of direct effect; textual, linguistic, historical, and precedential evidence of the original contemporaneous public linguistic meaning of Section Three's terms "insurrection or rebellion," "engaged in," "aid or comfort" and "officer of the United States, and so on." This is a familiar legal task. In the Court's words in Zivotofsky, "This is what courts do."
It is also what legal scholars do. As we have explained and defended at great length in our article (Ms. 61-111), Section Three presents questions of legal interpretation that are susceptible of judicial decision according to principled criteria of "originalist" legal analysis – consideration of textual, structural, and historical evidence. The words, terms, and phrases of Section Three are sweeping but reasonably clear: they are broad in their reach, but not particularly vague or opaque in their meaning. The meaning of what all constitutes "insurrection or rebellion" and what constitutes having "engaged in" such conduct is illuminated by examination of 1860s general and specialized dictionaries; by evidence of 1860s contemporaneous public and legal usage of such terms by President Lincoln, by Congress in enacting major pieces of legislation (including the "Ironclad Oath" and the Second Confiscation Act), and by the Supreme Court (including in The Prize Cases); by earlier usage in insurrection statutes and to describe earlier, familiar insurrections; and by evidence of congressional understanding and early practice. These are classic tools of originalist legal analysis for ascertaining the meaning of language employed in a constitutional text. Section Three does not lack for "judicially discoverable and manageable standards" and does not present issues that are nonjusticiable political questions on this ground.
As noted above, it does not appear that the political question doctrine extends beyond these two considerations – a textually demonstrable constitutional commitment of such matters to one of the political branches or a lack of judicially discoverable and manageable standards for resolving the issues in question. But even if it did, interpreting and applying Section Three does not implicate these other factors – it does not require a nonjudicial policy determination, does not implicate "unusual need for unquestioning adherence" to "a political decision already made," does not trigger unusual respect for or need to avoid the embarrassment of the other branches, and so on. Applying Section Three can be a constitutional question of significant consequence, yes, but as the Supreme Court has long made clear, federal courts have no freestanding power simply to decline to decide legal cases properly within their jurisdiction simply because they may be difficult, inconvenient, consequential, or unwelcome.
As we put it in one of the last paragraphs of The Sweep and Force of Section Three: "There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial." (Ms. at 125). To the contrary, all officials who swear an oath to support the Constitution have an obligation to do so, each within the sphere of his or her constitutional powers and duties:
No official should shrink from these duties. It would be wrong—indeed, arguably itself a breach of one's constitutional oath of office—to abandon one's responsibilities of faithful interpretation, application, and enforcement of Section Three. It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one's own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing and enforcing the Constitution's commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, resentment, opposition, or retaliation. The Constitution is not optional, and Section Three is not an optional part of the Constitution. (Ms at 125, emphasis added).
