New Lawfare Article on "What the Supreme Court Got Wrong in the Trump Section 3 Case"

I argue that the justices botched the legal analysis and relied too much on questionable policy considerations.

Earlier today, Lawfare published my article criticizing the Supreme Court's recent article in the Trump Section 3 disqualification case. Here is an excerpt from the introduction:

The Supreme Court's unanimous recent decision in Trump v. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the grounds that Section 3 is not "self-executing." In a per curiam opinion jointly authored by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures. This outcome was predictable based on the oral argument… But the Court nonetheless got the issue badly wrong….

Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or … an officer of the United States" or a state official and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices may hope they can avoid ever having to decide these questions.

In my view, Trump deserved to lose on all these points, and the Colorado Supreme Court correctly rejected his arguments on them. But I think he did have a plausible argument on the issue of whether his involvement in the Jan. 6 attack was extensive enough to qualify as "engaging" in insurrection. At the very least, he had a better argument there than on self-execution. The Court's resolution of the latter issue is based on badly flawed reasoning and relies heavily on dubious policy arguments invoking the overblown danger of a "patchwork" of conflicting state resolutions of Section 3 issues. The Court's venture into policy was also indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.

Comments

[Dr. Ed 2]

Ilya -- it doesn't matter and WE DON'T CARE.

[Sarcastr0]

I care that it makes you so impotently mad.

[Rev. Arthur L. Kirkland]

Getting kicked around by better people in the culture war for decades has made most of these clingers cranky, disaffected, delusional, desperate, and/or resentful.

[Longtobefree]

Damn it!
No "Mute User" flag outside the comments.

[Dr. Ed 2]

+1

[Commenter_XY]

tl;dr

Ilya The Lesser: I really mean it. I was wrong, but SCOTUS was wronger, dang it!! 🙂

[Rev. Arthur L. Kirkland]

What was your take when the right-wing law professors at this site turned out to be full of shit with respect to Obamacare, clinger?

(This guy considers Ilya The Bigot superior to the house libertarian because of shared strains of right-wing bigotry. Plus, the faux libertarians at this blog can't stand any genuine libertarianism.)

Carry on, clingers. So far as your betters permit.

[Michael P]

That makes, what, three posts so far with the same vacuous message?

[Alpheus W Drinkwater]

It's a little hard to understand their reasoning in the opinion. Section 1 and 2 of 14A are enforced by the states all the time, but for some reason section 3 can only be enforced by Congress. Why? What distinguishes that section. They don't say. Also, there is no distinction in the text of section 3 between federal and state or local offices, but for some reason the states can only enforce the section for state offices. Why? They don't seem to say. It just seems to be an outcome in search of justification, and they don't really supply much of one.

Personally, I agree with Prof. Somin that it's at best arguable that Trump engaged in insurrection. But it's hard to understand what in the Constitution prevents Colorado from reaching their own conclusion. But all 9 justices agreed that Colorado can't, so that's that.

[Zarniwoop]

Yep. Bottom line is that there's nothing in the Constitution, or in Marbury v Madison, that says the S.Ct. can't make a decision on "political" grounds. They're not final because they're right, they're right because they're final. Maybe good, maybe not, but here we are.

[CountmontyC]

One big difference in this case is that a federal office was involved and it had the potential to impact the entire nation.
There is also the fact that Section 1 requires that the states follow due process and that declaring a person an insurrectionist needs to meet those standards of due process.
Finally you seem to forget that there are five sections to the 14th Amendment and in Section 5 it gives Congress and not the states the power to create legislation to enforce the rest of the 14th Amendment which according to SCOTUS was the Insurrection Act which means to declare Trump an insurrectionist would require a conviction in a federal court.
So if you want Trump disqualified from elective office you need to take that first step and actually obtain a conviction. Then a state court can say " as a convicted insurrectionist you are not permitted on the ballot."

[Alpheus W Drinkwater]

What "standards of due process?" How much due process should Colorado have used, and where is this requirement spelled out?

I very much don't forget section 5, I just don't understand why suddenly only Congress can enforce section 3, while states can and have enforced sections 1 and 2.

I think your argument about section 3 requiring a conviction is wrong, but it doesn't matter. Neither I nor the Supreme Court said a single word about whether or not Trump committed insurrection. Well, I did say it was arguable, but that has nothing to do with the decision we got.

[CountmontyC]

The states are more bound by sections 1 and 2 than they enforce them.
The SCOTUS ruled that Congress had the power to create enforcement legislation for the 14th Amendment. Congress could have set a different standard for being declared an insurrectionist but instead passed the Insurrection Act requiring a criminal conviction. You can't just change it without a vote of Congress because want to destroy a political opponent.

[Alpheus W Drinkwater]

The Constitution gives Congress the power to enforce the amendment. SCOTUS seems to have decided that Congress has the SOLE power of enforcement, for some reason. What is the reason? Can you glean a reason from their decision?

I'm ignoring the rest of your response, because once again whether or not Trump engaged in insurrection plays no part in the decision.

[CountmontyC]

Because section 5 says Congress shall have the power to enforce not Congress and the states. Supposedly it might be possible for Congress to authorize the states to delegate enforcing section 3 under certain conditions but thus far there has been no such legislation.

[Josh R]

.

Section 1 and 2 of 14A are enforced by the states all the time, but for some reason section 3 can only be enforced by Congress. Why? What distinguishes that section. They don’t say.

What they said:

[…] the substantive provisions of the Amendment “embody significant limitations on state authority.” Under the Amendment, States cannot abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote. […] It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office.

Thus, their distinction is the 14th restricts state power through self-executing Sections 1 and 2. If Section 3 were self-executing, it would expand state power.

[Riva]

Good point. Other provisions of the 14th operate to bar certain state action but states are not enforcing those sections of the amendment like Congress.

[David Nieporent]

Thus, their distinction is the 14th restricts state power through self-executing Sections 1 and 2. If Section 3 were self-executing, it would expand state power.

Even if this were a textual distinction, which it isn't, in what way does that "expand state power"?

[Josh R]

Assuming the states already had the power, it preemptively affirmed it against a challenge. That too would be a distinction from what Sections 1 and 2 do.

[Alpheus W Drinkwater]

States clearly already had the power with reference to the President and Vice-President, because they could choose electors however they see fit, and direct those electors how to vote through state law. Thus section 3 being self-executing doesn't increase state power, it leaves it where it already was.

That whole argument made no sense to me anyway. The fourteenth amendment is quite expansive, and does a lot of things. The various sections were written and passed for a variety of reasons. What is the textual basis for limiting the effect of the entire amendment to things which limit state power, rather than expand it?

[Riva]

You don't think it would be somewhat chaotic to the national election to have 50 different jurisdictions all enforcing their own definition of insurrection in separate proceedings with their own specific procedures? Which is kind of the mess the S.Ct. may have left us with but with respect to state offices, but at least national offices are free from local lawfare abuses.

[David Nieporent]

You don’t think it would be somewhat chaotic to the national election to have 50 different jurisdictions all enforcing their own definition of insurrection in separate proceedings with their own specific procedures?

1) That's not a legal argument.
2) There is no "national election." The presidential election is 51 state+DC elections, not a single national election. In every single presidential election, there exist numerous candidates that are on the ballot in some states and not others. There's nothing special about (D) and (R) that require them to be on every state's ballot or none.
2b) And what's the chaos, anyway? One only votes in one state. If your state has person X on its ballot, you can vote for him; if your state doesn't, you can't.

[Stephen Lathrop]

And what’s the chaos, anyway?

An objective to maximize Trump’s chance to win the presidency occasioned the chaos. The (irrelevant) notion that, “patchwork,” disqualifications done state-by-state could disqualify him separately made the objective appear chaotically difficult to achieve.

What enabled that irrelevance to become a pillar supporting the decision? It was SCOTUS’s disregard that the text of Section 3 disqualified Trump federally, and imposed a two-thirds supermajority requirement on Congress to lift that disability, before Trump even arrived in Colorado. That was inconvenient. For the Court to acknowledge that would kick the patchwork pillar from under the decision. Which would in turn force the Court to review the substantive question whether Trump was legitimately disqualified nationally by crystal clear Constitutional text.

Whatever legal questions it raised, the case thus presented to the Court a purely political and consequentialist dilemma apparently felt alike by all 9 justices: What means could be found to dodge review to reconsider the explosive question whether Trump was—as found by Colorado—an insurrectionist, disqualified nationwide by Section 3 of the 14th Amendment of the U.S. Constitution, and thus disqualified alike everywhere—with no baffling patchwork in sight?

Not one justice had the courage to say that it was a mistake to omit that review. To avoid calling it a mistake, the concurrence went so far as to argue two mutually exclusive views simultaneously. First, that Trump was disqualified by Section 3, and, second, that Colorado had disqualified him. And then the concurrence went on paradoxically to endorse Court authority to protect the nation from that hypothetical, “patchwork,” which would not exist if disqualification by Section 3 were acknowledged. The confusions are strewn so densely that it is challenging even to comprehend the two alternative narratives delivered by the rival Court factions.

To summarize, the actual majority lunge to protect Trump maximally was rightly criticized in the concurrence, although not criticized harshly enough. That part is pure, judicially corrupt, partisan politics at work. But the concurrence joined the majority in mutual fear to confront the case substantively—and even abetted the majority in dis-serving the nation in the midst of constitutional crisis.

[A. Meateater]

As long as the court is making a ruling that conforms to the text of the law they are interpreting, I see no problems with consequentialist reasoning playing a role in their decisions. Indeed, it would be nearly impossible for them not to use consequentialist reasoning and achieve results that make sense.

[Riva]

Chaos is 50 different definitions of "insurrection" with as many procedures, which is what the left wanted in their section 3 lawfare against the president before they were shut down by the Court.

[Alpheus W Drinkwater]

Having states decide who they want to be President based on their own various and sundry reasons is the exact system the Constitution sets up. You can characterize it as chaos, but that's not a reason not to follow the Constitution. Change it if you don't like it.

If enough states don't want someone to be President, that person doesn't get to be President. It's a pretty simple concept.

[David Nieporent]

Again: there are already 51 different sets of procedures for getting on 51 different ballots. Each state has its own distinct rules for ballot access, getting different numbers of signatures in different ways. Why is that not chaos, but deciding whether someone is constitutionally ineligible is chaos?

If you want to say that it's burdensome on the campaign to have to comply with each, fine, but that's not "chaos."

[bookwork83]

On the actual eligibility of the candidate? Pretty sure the court already ruled that for example ca couldn't require tax returns to be on the ballot. But basically this is an argument why pence could've legally refused to count the ballots - just declare Biden an insurrectionist

[The Margrave of Azilia]

"But it’s hard to understand what in the Constitution prevents Colorado from reaching their own conclusion."

I'd say if the Colorado high court makes a ruling interpreting Section 3, that would be a federal issue appealable to the U. S. Supreme Court, which would decide whether the facts of the case are enough to trigger Sec. 3.

If, on the other hand, the Colorado legislature simply says that no electors shall be pledged to Donald Trump, that would be Colorado's decision to make.

[Alpheus W Drinkwater]

Yes sir, I agree completely. And if SCOTUS had ruled that the facts of the case are not enough to trigger section 3, I could understand and even maybe agree with the decision. But I don't understand the Constitutional basis for this decision, that for some reason only Congress can enforce section 3 against candidates for federal office. I'm not necessarily saying the decision is wrong, I'm saying I don't understand it. And none of the commentary I've read so far has been very convincing or enlightening.

[A. Meateater]

The entire point of the 14th Amendment was limiting state power. This decision is entirely in keeping with that.

[#FFFFFFPride]

Lawfare, the blog for traitors and color revolution coup plotters.

[Rev. Arthur L. Kirkland]

Lawfare is a blog for traitors and color revolution coup plotters.

The Volokh Conspiracy is a blog for half-educated racists, old-timey misogynists, superstitious gay-bashers, on-the-spectrum transphobes, backwater immigrant-haters, race-targeting vote suppressors, chanting antisemites, knuckle-dragging Islamophobes, un-American insurrectionists, and disaffected culture war casualties.

Where is the hope for America?

[Riva]

Then why do you keep reading it? Are they the only forum that hasn't banned you from making comments?

[Rev. Arthur L. Kirkland]

No free swings, clingers. It's a marketplace of ideas. Some new readers might review the list of strong, mainstream, liberal-libertarian educational institutions whose franchises have been misappropriated by a bunch of right-wing law professors and mistake this for an academic blog.

Also, bigots should be mocked, scorned, and referred to as bigots.

Regarding viewpoint-controlled censorship and partisan hypocrisy: Are you unfamiliar with Prof. Volokh's banishment of Artie Ray Lee Wayne Jim-Bob Kirkland? (He is entitled to impose partisan censorship at his blog -- his playground, his rules -- but the hypocrisy should be noted.)

[The Margrave of Azilia]

How long ago was the last time one of your online personalities got censored here?

[Bruce Hayden]

Not surprising that Som8n posted this there - it was their theory in the first place.

[Alpheus W Drinkwater]

Just be honest and admit that posts in the Lawfare blog are over your head and you don't understand them.

[Riva]

President Trump should have lost on whether he received adequate due process? You wonder whether he received adequate due process in a half-assed truncated election challenge presided over by a judge who donated to a group that condemned the “political extremists who “stormed ” the Capitol? And who admitted the joke Dem. Jan 6 committee report into evidence? Yeah no due process issues there.

[Bruce Hayden]

Which, BTW, was, I think, the reason that the decision was made. The Due Process provided, no doubt, offended the Republican majority on the Supreme Court, but deciding the case on those grounds would have been messy. They would have had to lay out the minimum amount of Due Process required, and if the line weren’t bright enough, could expect to hear more of these cases before the election, and likely some of the opposite variety, for Biden giving Aid and Comfort to our enemies (China and Iran) after he and his family had received bribes from the former.

[Dr. Ed 2]

I am reading ACB’s concurrence in a different light — we don’t know that the 5 didn’t initially also say THERE WAS NO INSURRECTION ANYWAY as I predicted they would.

Yea, that would have been inflammatory, as she suggests, and there is a greater good in having a justification that all nine could agree with.

Brown Jackson could wind up seeing herself being impeached by a MAGA Congress if she isn't careful...

[David Nieporent]

we don’t know that the 5 didn’t initially also say THERE WAS NO INSURRECTION ANYWAY as I predicted they would.

Yes, we do.

[David Nieporent]

Trump did not raise a due process challenge with SCOTUS, for two obvious reasons:

1) It's a losing argument, since Trump received plenty of process.
2) It's a procedurally unhelpful argument, since if he won all it would mean is that Colorado would have to give him a do over hearing; it would not mean that he was eligible.

[Riva]

The kangaroo court proceedings speak for themselves. Review the transcripts and trial video if you like.

[Sarcastr0]

Ipse dixiting again.

[Alpheus W Drinkwater]

What do you believe is the necessary level of due process, and where do you believe this is spelled out?

[Bruce Hayden]

BS. It mad maybe misdemeanor level Due Process, but with a lower standard of proof required. The admission of the J6 committee report into evidence, all by itself, deprived the petitioners of Due Process, because it deprived the petitioners of the right to confront the witnesses against them.

[David Nieporent]

"Hearsay exceptions violate due process" is certainly a take. An uninformed take, but a take. Hint: there is no "right to confront the witnesses against them"; the sixth amendment on its own terms applies to criminal proceedings, not civil.

[Kleppe]

Cope, seethe, touch grass.

[Sarcastr0]

Boomer 4chaners are the worst.

[Rev. Arthur L. Kirkland]

Would you say the Volokh Conspiracy is

the 4chan of legal blogs?

the afternoon AM radio of legal blogs?

the Stormfront of legal blogs?

the FreeRepublic of legal blogs?

the Fox and Friends of legal blog?

[MollyGodiva]

The law professors local bar of legal blogs

[Rev. Arthur L. Kirkland]

Maybe, if that local bar is home to disaffected losers, Confederate flags, a bathroom wallpapered with Playboy centerfolds, and a habit of catering to white, male regulars.

[Stephen Lathrop]

Kleppe, welcome back.

You have omitted to apologize for doctoring my commentary, reversing the meaning 180 degrees, and then relying on your own reversed presentation of what I said to accuse me of advocating violence, which I steadily oppose in fact.

Please apologize now, quoting what I actually said, and what you said, so that I can be assured you have seen this request.

[MollyGodiva]

I feel like I am screaming into the void every time I post this and people who know better still spout the lie that J6 was the entirety of the attempted coup, which lasted weeks and included the fake electors, pressuring local officials to ignore election results, and demanding that Pence throw out Biden EC votes. The speech and attack on J6 is just a part of the overall attempted coup.

[Jonathansingletary]

Absolutely correct. Pages and pages and several court cases proving that it was an orchestrated, illegal, weeks-long effort to undermine a legitimate election.

[Brett Bellmore]

You're screaming into the void because that's not what the word "coup" means. And the void knows that.

"a sudden decisive exercise of force in politics and especially the violent overthrow or alteration of an existing government by a small group : COUP D'ÉTAT"

Trump's efforts were no more a "coup" than the efforts of Democrats after the 2016 election to suborn some of Trump's electors to vote for Hillary.

This is, of course, where you'll point to the January 6th riot. But if anybody has evidence that Trump orchestrated it, they're sure hiding it.

[Stephen Lathrop]

Stop lying Bellmore.

It is trivial to show by massive and redundant evidence that Trump:

1. Summoned rioters to Washington, and;

2. At a time coordinated with his need to create disruption;

3. Directed rioters to the Capitol;

4. Those being steps planned and coordinated to seize control of government by other fraudulent practices prepared in detail long in advance, and;

5. If those steps had not been thwarted by a combination of determined political resistance by office holders put in fear of their lives, and valiant defensive police action to stem violence, there was a reasonable chance that Trump's plot could have proved successful—by triggering practice of alternative methods to decide elections, which Trump was not entitled to, but which Trump had planned in advance to rely upon if violent disruption opened a way to make them available.

All that looks provable by evidence already publicly announced. Additional supporting evidence, including evidence from cooperating witnesses placed high in the Trump administration and not yet heard from, will undoubtedly augment that proof.

The Supreme Court has power corruptly to spare Trump a public trial until after the election. It even has power corruptly to spare Trump a guilty verdict on appeal. But on the question what the facts will prove to the public if he gets a trial, Trump cannot win. The case against him is devastating.

[CountmontyC]

If there is evidence of your allegations then they should charge Trump and prove it in court.

[Brett Bellmore]

Then don't just claim it's trivial to show it. Actually show it.

[NvEric]

Joe Biden said in 2020:
"We have assembled the most extensive and inclusive voter fraud organization in the history of the United States"

So, yes, it was an illegal and illegitimate election. The coup succeeded in planting a fool and idiot on the throne, of the name Joe Biden - America's first Emperor.

[ObviouslyNotSpam]

Even Fox News didn’t go full retard with this obvious Biden gaffe: https://www.foxnews.com/politics/biden-voter-fraud-organization-video-gaffe

But you do it, repeatedly!

[Brett Bellmore]

"such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it,"

These are matters to be established in a criminal trial under 18 U.S. Code § 2383, so why in heck would anybody expect the Supreme court to do anything more than take notice that no such trial has taken place?

If a small claims court convicted somebody (Who hadn't even been charged with it!) of murder, would the Court get into the weeds about whether or not a murder had taken place, or the 'convicted' had committed it? No, of course they wouldn't. They'd simply reverse on the basis that small claims courts can't convict people of murder!

It's the same here; The Court had no interest in the question of whether an insurrection actually happened, or Trump was part of it, because the question was actually whether a state court in a civil proceeding could find him guilty of it.

[David Nieporent]

If a small claims court convicted somebody (Who hadn’t even been charged with it!) of murder, would the Court get into the weeds about whether or not a murder had taken place, or the ‘convicted’ had committed it? No, of course they wouldn’t. They’d simply reverse on the basis that small claims courts can’t convict people of murder!

Small claims courts can in fact make factual findings that people have committed murder. They cannot, of course, impose the punishment that the applicable penal law specifies. But they can make the finding.

Just like a civil court made the finding that OJ Simpson killed Ron Goldman. Not only was he not convicted in criminal court of killing Goldman; he was outright acquitted for it. So what? Has no bearing on the power of the civil court to make that finding and impose the civil penalties for that crime.

[Brett Bellmore]

"I can make findings of guilt!"

"Why, so can I, or so can any man. But will the Supreme court think that your "finding" has any legal significance?"

[Krenn]

I still say SCOTUS has no power to tell Congress what it can or can't do on Jan 6th, 2025, and that therefore, it doesn't matter what this opinion might seem to say on the subject ahead of time.

[Alpheus W Drinkwater]

And I still say that Congress has no power to rule on the validity of votes of the Electoral College, notwithstanding the Electoral Count Act and the newer edition where they try to give themselves that power. The Constitution does not give them that power, the framers considered and rejected it.

[Krenn]

also, in related news...

https://decivitate.substack.com/p/the-supreme-court-gives-section-3

this blog points out that Washington, DC local law actually has a Quo Warrento provision.

AND it hypothetically allows for 3rd party action.

AND it applies to Federal officeholders generally, not just DC local officers.

AND someone attempted to use it against Obama previously, and courts at least admitted that the law could hypothetically be used that way.

AND it can only be used AFTER someone is sworn into office.

This may make things.... horribly complicated if Trump wins.

[ObviouslyNotSpam]

Not based on this Supreme Court decision. They will simply rule again the way they did in this case. Which of their overriding policy considerations would be different? Indeed, the policy reasons for not getting involved would be even stronger after Trump has been sworn into office.

[Krenn]

Well, this one has been approved by federal congress, and it's been subject to judicial oversight as recently as Obama. that's a big difference.

[Brett Bellmore]

Easy enough to square the circle: For the quo warranto action to actually apply against somebody, you have to establish that they're guilty of insurrection. And, how do you do that?

By convicting them of insurrection.

If they then, anyway, presume to occupy a federal office, quo warranto away!

[David Nieporent]

And, how do you do that?

By bringing a quo warranto action, and having the court in which you brought that action rule that way.