[Plaintiff's] daughter, E.B., served a time-limited expulsion from her high school after she lied to her parents and to the police about her interaction at school with an administrator and tried to get another student to back her false story. E.B. actually admits she falsely accused the administrator but Plaintiff nevertheless claims the school was wrong to discipline E.B. for it. Plaintiff further claims the school and its administrators are liable for overbroad search policies and for retaliatory school discipline. There is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law….
In 2021, school officials at Okemos High School began spot checking school bathrooms to stem a rise of violence and to curb vape and e-cigarette use amongst its students. Vape pens and other like devices are more difficult for school officials to detect than traditional tobacco and marijuana products because they are easier to conceal and do not emit odors. But experience taught the administrators that students would often congregate in a single bathroom stall to vape together, and so the spot checks included a brief look underneath the bathroom stall partitions from public areas in the bathroom to see if multiple students were in the same stall together. Nothing in policy or practice permitted officials to look inside the stall in a way that would allow viewing of students using the toilet.
In the spring of 2022, … E.B., was subject to two searches by school officials. The first search was a minimal no-contact search of E.B.'s person after another student complained about E.B. and other students vaping in the school bathroom. The second search took place approximately three weeks later when E.B. was in a bathroom stall speaking with another student. During that search the assistant principal, Alison Cironi, conducted a spot check and leaned down from a common area to look underneath the stall partitions.
But the story E.B. later told her parents was that the assistant principal had approached E.B.'s stall and looked into it while E.B. was urinating. Based on their daughter's report, E.B.'s parents complained to the school and then to the police. It quickly became clear, however, that E.B.'s story about Ms. Cironi was not true. Compounding matters, it later came out that E.B. had asked another student to lie for her, and that E.B.'s friends threatened that student to back up E.B.'s falsehood. A disciplinary hearing was held, and the school board decided to expel E.B. for 180 days.
Why did Jonathan Mitchell not vigorously defend Griffin's Case and Chief Justice Chase? And Mitchell missed Justice Barrett's question about direct/collateral challenges due to his refusal to accept the sword-shield dichotomy.
[This is the third installment in a series about the oral argument in Trump v. Anderson. Thefirst installment focused on Justice Gorsuch's colloquies about Officers of the United States." The second installment focused on Justice Jackson's colloquies about "Office under the United States." This third installment focuses on Justice Kavanuagh's colloquies about Griffin's Case and Justice Barrett's questions about federal courts.]
Most people assume that the leading argument Seth and I have advanced is "Officers of the United." Not so. In our law review article and in each amicus brief, we have led off with Griffin's Case. Indeed, we raised Chief Justice Chase's decision in a 2022 New York Times guest essay about Madison Cawthorn. We've always thought this precedent was an extremely important element of the Section 3 litigation. In the lower courts, Trump's counsel vigorously advanced Chief Justice Chase's decision. But before the Supreme Court, that advocacy vanished. Trump's opening brief barely mentions Griffin's Case in passing, and the reply brief does only a little more. Meanwhile, Trump's lawyers spent several pages on Moore v. Harper, which got a grand total of zero questions, as Griffin's Case which took more than half of the argument.
If I had to peg it before the case, I would have predicted that Chief Justice Roberts would most be drawn to Chase's decision. As it turned out the leading proponent of Griffin's Case was Justice Kavanaugh. Roberts was oddly muted on most issues.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Just as Peter and Annica Quakenbush were about to open a conservation burial ground (or green cemetery) on their heavily forested property in rural Michigan, local officials passed an ordinance banning cemeteries. But the Michigan Constitution protects the right to use property and engage in any business that doesn't harm the public. Click here to learn more.
D.C. Circuit: Despite some pretty wild arguments to the contrary, it turns out that the president of the United States is not immune from criminal prosecution after he leaves office for illegal actions taken while in office. This has some implications for former President Donald Trump who, "[f]or the purpose of this criminal case" alleging an unlawful attempt to overturn the results of the 2020 presidential election, "has become citizen Trump."
Forty-three (!) Pennsylvania State Police SWAT team officers execute a pre-dawn, no-knock raid on the home of a Bangor, Penn. family. In technical parlance, they beat the snot out of the family—most egregiously striking a 76-year-old woman in night clothes in the face with a shield, breaking multiple teeth and a vertebra. Family sues under Fourth Amendment for excessive force. Third Circuit: "Policing can be rough business. But the Constitution requires police to use reasonable restraint, even when force may be necessary." No qualified immunity.
Carbon County, Penn. trooper pulls over a van with heavily tinted windows. The driver gives evasive answers when asked about the van's registration and tells a story of his travels that sounds suspicious. The van also sports an air freshener. Trooper then detains the van and driver for around an hour until a drug dog arrives, which alerts, leading to the discovery of 20 kilos of cocaine in a hidden compartment. Third Circuit: Enough reasonable suspicion to prolong the stop. Concurrence: But the air freshener wasn't suspicious.
Concert photographer sues the website Independent Journal Review for copyright infringement after it uses one of his photos of Ted Nugent in its article "15 Signs Your Daddy Was a Conservative" (Sign 5, "He hearts 'The Nuge'"). The website defends that it made "fair use" of the photo of the Motor City Madman and, besides, only made $2-$3 on advertising from the article. Fourth Circuit: Slightly cropping a copyrighted photo of a celebrity for an article discussing that celebrity is not fair use. (Readers are invited to check out page 8 of the decision and form their own opinion.)
Justice Jackson explained that an ambiguous text should be interpreted in favor of expanding democracy. But Mitchell's concern about Foreign Emoluments Clause "boomerang" could have cut off a path of complete victory.
[This is the second installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about "Officers of the United States." This installment will focus on Justice Jackson's colloquies about "Office under the United States."]
In the lower courts, Trump argued that the President was not an "Officer of the United States" and that the Presidency was not an "Office under the United States." Seth Barrett Tillman and I are the primary proponents of the former argument, and Kurt Lash is the primary proponent of the latter argument. Either argument would decisively win the case for Trump. Yet, before the Supreme Court, the Petitioner's opening brief barely mentioned "Office under the United States." At most, Petitioner said the phrase was "ambiguous" in Section 3. The issue was probably preserved, but it was clear that Petitioner did not forcefully argue the position. Going into Court, it seems that Jonathan Mitchell, counsel for Petitioner, was not willing to fully embrace the "Office under the United States" argument. Why? He was worried about an Emoluments boomerang. This may have been a deliberate strategy at the outset, but it is one that should have been abandoned.
[This post will be the first installment in a series about oral argument in Trump v. Anderson.]
I'll put my cards on the table: I was very critical of Justice Gorsuch's decision in Bostock. To be clear, I did not disagree with his textualist methodology. Rather, I disagreed with how he applied it. Specifically, I faulted Bostock for starting with modern precedents that were not themselves textualist. But when Justice Gorsuch starts at the very beginning, from first principles, he is at his best. And I have always commended Justice Gorsuch's willingness to follow text, even if it leads to counterintuitive results. For that reason, the Tillman amicus brief citedBostock in several places to respond to any arguments based on the absurdity doctrine:
The Framers were not omniscient. They had no reason to think about a person who: (1) was elected as President; (2) but had never before taken any other constitutional oath; (3) then is alleged to have engaged in insurrection; and (4) then sought re-election. "Should we consider the expectations of those who had no reason to give a particular application any thought …?" See Bostock, 140 S.Ct. at 1751. No. Rather, "the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a [text] give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law." See id. at 1737. In 1868, under the written word of the Constitution, the President was not an "Officer of the United States."
We had hoped that those who joined the Bostock decision would extend this approach to the Section 3 context. During oral argument in Trump v. Anderson, Justice Gorsuch demonstrated, again, that he is the Court's most careful, consistent textualist.
From Judge Kent Wetherell's decision yesterday in Kassenoff v. Harvey(N.D. Fla.) (for a news article with more background on the case, see here):
Plaintiff [Allan Kassenoff] is a lawyer from New York. Defendant [Robbie Harvey] is a "social media influencer" from Pensacola, Florida, with millions of followers on TikTok and other social media platforms.
Plaintiff and his then-wife, Catherine Kassenoff, were involved a contentious divorce and child custody proceeding in a New York court, starting in 2019. During the case, the court awarded sole temporary custody of the Kassenoffs' three children to Plaintiff and restricted (and ultimately suspended) Ms. Kassenoff's right to visit the children.
On May 27, 2023, a few weeks after losing her visitation rights, Ms. Kassenoff posted on Facebook that she would be "ending [her] own life" by medically assisted suicide in Switzerland because she had a terminal health condition and she could "no longer endure the abuse and terror" inflicted on her by Plaintiff. {Plaintiff alleges that Ms. Kassenoff lied about having a terminal health condition to make her story more sympathetic.} She asserted that the court system failed to protect her and her children by "favor[ing] the monied party," and she provided a link to a public Dropbox containing the children's mental health records, some of the court documents from the Kassenoffs' matrimonial proceeding, and old videos of Plaintiff and the children. She also encouraged her followers to share those documents everywhere and to "organize [themselves], use the facts of [her] case … and make change."
On May 31, 2023, four days after Ms. Kassenoff's Facebook post, Defendant began posting videos on social media about Plaintiff. In the videos, Defendant depicted Plaintiff as an abusive spouse and father who took advantage of the New York court system by "pa[ying] off" court-appointed officials during the matrimonial proceeding. The videos have received approximately 39 million views, 5 million likes, and 150,000 comments.
In a series of videos from June 7 to June 9, 2023, Defendant encouraged his followers to "bombard" Plaintiff's law firm, Greenberg Traurig (Greenberg), and its clients with emails, phone calls, voicemails, and social media attacks "demanding" Plaintiff's termination. Greenberg received "many, many emails … as a result of [Defendant's] incitement," including one stating "[t]he emails, the calls, they won't stop until you do the right thing and FIRE HIM …. FIRE KASSENOFF OR WE WILL NOT STOP."
On June 9, 2023, as a result of these actions, the CEO of Greenberg informed Plaintiff that the firm had no choice but to sever ties with him. Plaintiff was told that he had to voluntarily resign or he would be fired, and two days later, Plaintiff "forcibly resigned" from the firm.
Plaintiff sued for defamation and related torts, in a 110-page complaint; the court rejected this on various grounds, including that:
Yesterday, a jury in the District of Columbia ruled for climate scientist Michael Mann in his long-running defamation suit against writers Mark Steyn and Rand Simberg, for blog posts the two had written challenging the validity of his research and comparing Penn State's investigation into Mann's alleged misconduct with the University's whitewash of Jerry Sandusky. The suit was initially filed in 2012, and initially included National Review and the Competitive Enterprise Institute as defendants.
The jury awarded Mann nominal compensatory damages of $1 against each defendant, but then added punitive damage awards of $1 million against Steyn and $1,000 against Simberg. I would think that these damages--if not the verdict itself--are likely to be appealed.
The punitive damages would seem to be the most vulnerable part of the judgment. Under existing Supreme Court precedent, excessive punitive damages violate Due Process. So, for example, in BMW of North America v. Gore, the Court held that a punitive damage award of $2 million was excessive given that the plaintiff had only been awarded $2,000 in compensatory damages. This 1000-to-1 ratio, the Court held, could not be justified even considering the extent to which the defendant had engaged in egregious conduct.
There is some question whether BMW would continue to attract a majority of the Court today. That decision was 5-4. Justice Stevens wrote the majority, joined by Justices O'Connor, Kennedy, Souter, and Breyer. Justices Scalia, Thomas, Ginsburg and Rehnquist dissented. Nonetheless, the BMW holding is binding on lower courts.
This long-running litigation may not be over. Steyn's camp has indicated they intend to challenge the punitive damages award (if not other aspects of the decision). Mann's attorney also told the NYT they still plan to appeal the prior decisions that had removed CEI and National Review from the case: "Asked about Competitive Enterprise Institute and National Review, John Williams said, 'They're next.'"
DISCLOSURE: As I'venoted in priorposts on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at the Competitive Enterprise Institute from 1991 to 2000 — many years before the events at issue in this litigation. If either of these facts makes you suspect bias on my part, so be it.
The oral argument in Trump v. Anderson was not the only activity at the Supreme Court yesterday. The Court also issued opinions in two argued cases -- the second and third decisions to be released this term.
In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, a unanimous Court held that a consumer may sue the U.S. Department of Agriculture for money damages under the Fair Credit Reporting Act because the Act waived the federal government's sovereign immunity. Justice Gorsuch wrote for the Court.
In Murray v. UBS Securities, the Court held that under the whistleblower protection provisions of the Sarbanes-Oxley Act, a whistleblower challenging an employer's adverse employment action must prove that his protected whistleblowing activity was a contributing factor in the employer's unfavorable personnel action, but does not have to prove that the employer acted with "retaliatory intent." Justice Sotomayor wrote for the Court. Justice Alito filed a separate concurring opinion joined by Justice Barrett.
This seems like a a slow pace for the issuance of opinions, but not as slow as last year, when the Court had only issued one opinion in an argued case. In OT 2021, by contrast, the Court had issued ten opinions in argued cases, though several of those (WWH v. Jackson, US v. Texas, Biden v. Missouri, and NFIB v. OSHA) had been heard on an expedited basis. Pre-Covid, at the start of OT2019, the Court had also only issued three opinions in argued cases at this point (though it had also decided two cases summarily with per curiam opinions).
[Note: This is the tenth and hopefully the last – at least for now; we won't promise that we won't ever write more on this topic! – in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first nine essays can be found here, here, here, here, here, here, here, here, and here.]
Since last fall, when our article The Sweep and Force of Section Three was accepted for publication by the University of Pennsylvania Law Review and first posted on SSRN, we have received further comments and suggestions about the draft and taken them into consideration as we have gone through the editing process. As noted at the outset of this series, none of these comments has led us to reconsider and change our core substantive propositions in a major way. As the article goes to press in the next few weeks, it remains very close in substance to the versions from last fall. (We are grateful for all the comments and suggestions, and especially thank all who identified errors in the manuscript.)
We have made just one more meaningful substantive change since September, which we wish to note publicly before the article is published. Though the article is set to appear in print sometime this month, it might not beat the Supreme Court's decision in Trump v. Anderson to press. Indeed, it is a small irony that even though our article was written and posted before these lawsuits were filed (and with no contemplation of immediate litigation) the Supreme Court might nonetheless win the race to publication, leaving some aspects of our article potentially overtaken by events. (We would strongly resist, however, any notion that a law review article becomes "moot" in consequence of a Supreme Court decision! Our views remain our views, and remain correct, or not, whether the Supreme Court embraces them, or not.)
At all events, if we do not mention a substantive change in the content of the article now, nobody might ever notice it. (Or, equally troubling, people might notice and think we surreptitiously altered the manuscript, just before publication, to take account of the Court's decision.)
The change occurs beginning in the place of the draft that occupies pages 32-33 of the version now posted on SSRN. We are discussing the various situations in which different governmental actors might possess duties or powers that provide occasion for application of Section Three as a legal rule. In the course of considering certain "Special Situations" (p. 29), we consider who all might have authority to enforce Section Three with respect to the constitutional ineligibility of an individual for the office of President of the United States. We argue that state election officials, courts, and presidential electors all have the responsibility to faithfully apply Section Three's constitutional disqualification rule, each within the sphere of its respective powers and duties under state or federal law.
We then turn to this question: Does the Twelfth Amendment (and relevant federal law), by providing for a joint session of Congress in which the votes of electors for President and Vice President, transmitted sealed to the seat of government, are then opened and counted, implicitly confer upon Congress authority not to count votes cast for a candidate who is constitutionally ineligible by virtue of Section Three of the Fourteenth Amendment.
In the version of the article posted on SSRN, we stated categorically that the answer was No: Congress possesses no power to reject on substantive grounds votes actually cast by electors (as opposed to a power to determine the authenticity of the submitted votes; that is, whether the votes to be counted were actually the votes cast by the electors of the state).
While we have not changed our ultimate conclusion – we still believe that the better answer is that Congress currently lacks a substantive power to evaluate the propriety of votes cast by electors – we have changed the level of certainty with which we express this conclusion. And we have also set forth at greater length the competing arguments on both sides. We have become persuaded by many discussions that the argument for an implied power of the joint session of Congress to decline to count electoral votes cast for a constitutionally disqualified candidate is at least plausible, even though we ultimately disagree with it.
Here is how the text of our article now reads on this point, as scheduled for publication sometime very soon. (We have omitted the footnotes):
Section 3 of the Fourteenth Amendment and the Incompatibility Clause both apply to "officers under the United States" and must thus mean the same thing
The oral argument today in Trump v. Anderson strongly suggests a Trump victory on the grounds advanced heroically by Josh Blackman and Seth Barrett Tillman. Many kudos to them both for the long and successful campaign that they have waged. The Court will likely reverse the Colorado Supreme Court based on Griffin's Case, the absence of congressional legislation enforcing Section 3, and the prudential and pragmatic arguments made in Section 3 of the Brief signed by Attorneys General Edwin Meese III, Michael B. Mukasey, and William P. Barr, as well as by me and Gary Lawson.
Justices Ketanji Brown Jackson and Neil Gorsuch made a valiant but unsuccessful attempt to get Trump's attorney to address the other plausible off ramp for the Supreme Court in this case, which is the argument that Section 3 does not apply to the President of the United States. They offered definitions of the phrase "officer of the United States" and of the word "office" and of the word "officer", but they never forced Trump's awful lawyer to say anything about the meaning of the phrase "office *** under the United States", which language appears in exactly that formulation in both Section 3 of the Fourteenth Amendment and in the Incompatibility Clause.
If the presidency is an "office *** under the United States" that covers Donald Trump under Section 3, of the Fourteenth Amendment, then it has to also be an "Office under the United States" for the purposes of the Incompatibility Clause, which bars Members of Congress from holding any "Office under the United States." That would mean that the Presidential Succession Act of 1947 is unconstitutional because it allows either the Speaker of the House of Representatives or the President Pro Tempore of the Senate to serve simultaneously as a Member of either House and to hold the Presidency in the absence of both a President and a Vice President, which Presidency is wrongly said to be an "Office under the United States".
The Founding Fathers included legislative officers in the line of succession to the President, in 1792, in the Second Congress, in which many framers of the Constitution sat. President George Washington signed the 1792 Presidential Succession Act into law disregarding a complaint by Rep. James Madison that legislative officers could not be put in the line of succession to the Presidency because doing so would violate the Incompatibility Clause. President Washington and the Framers in the second Congress did not think that the Presidency was an "Office under the United States" for the purposes of the Incompatibility Clause. This is dispositive proof that the Presidency is also not an "office *** under the United States" for the purposes of Section 3 of the Fourteenth Amendment.
The justices might well overrule the Colorado Supreme Court on the grounds that only Congress has power to enforce Section 3 of the 14th Amendment. Such a ruling would be a serious mistake.
Today's Supreme Court oral argument in Trump v. Anderson overwhelmingly focused on the issue of whether Section 3 of the Fourteenth Amendment is "self-executing," that is whether states can enforce it in the absence of congressional legislation. Most of the other issues at stake in the case got little or no attention. For example, there was almost no discussion of the question of whether the January 6 attack on the Capitol was an "insurrection" and whether Trump "engaged" in it.
Both liberal and conservative justices repeatedly raised questions about whether letting states enforce Section 3 would lead to a lack of uniformity, and whether states could abuse their authority by trying to disqualify people for political reasons. Given the extensive focus on this issue and the relative neglect of others, there is a good chance that the Court will overrule the Colorado decision on that basis. Strikingly, the questioning focused much more on pragmatic concerns about chaos and abuse than on more traditional legal issues about the text, structure, and original meaning of Section 3. The self-execution question may also appeal to the justices because it is an "off ramp" that would allow them to dispose of this hot potato without having to pass judgment on the nature of the January 6 attack on the Capitol and Trump's egregious actions in inciting it and trying to use it as leverage to force Congress to keep him in power after losing the 2020 election.
But it would nonetheless be a mistake to decide the case in that way. Nothing in the text or original meaning of the Fourteenth Amendment require congressional legislation to enforce it. Indeed, multiple ex-Confederates were adjudged disqualified in the aftermath of the Civil War even without any such enforcement legislation, which suggests a broad understanding that disqualification does not depend on congressional action. Section 5 of the Fourteenth Amendment does give Congress the power to enact "appropriate" enforcement legislation. But there is no indication that this power is exclusive. And the Court has repeatedly allowed self-enforcement for other parts of the Fourteenth Amendment, even though Section 5 applies to them, as well.
Practical concerns about non-uniformity and abuse are understandable. But they are overblown. If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g. - by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.
In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen (Cruz was born in Canada to US-citizen parents). Courts in different states could have reached divergent conclusions on the issue of whether a child born to US citizens while the latter resided abroad counts as "natural born" (it so happens they did not). Yet no one doubted state courts could decide this issue, subject - of course - to potential review by the federal Supreme Court.
Courts in different states could also potentially reach divergent conclusions about factual issues (e.g. - whether a particular person was involved in the insurrection or not). But that's a problem that can arise in any adjudication of candidate qualifications. Thus, no one doubts that state courts can adjudicate whether a candidate for president meets the requirements that he be 35 years old, and a "natural born" citizen of the United States. But if, for example, there is a factual dispute about the validity or accuracy of the candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't actually born in the United States), courts in different states could potentially reach divergent factual conclusions on that, as well.
Even on factual issues, serious abuses can be constrained by the power of the Supreme Court to review lower-court factual findings for "clear error." If lower courts or state officials make things up out of whole cloth or go against the clear weight of evidence, that can still be overturned.
While many of the justices seem to have overestimated the downside of allowing enforcement by states, they seemingly ignored the downside of ruling that the power belongs exclusively to Congress. As a practical matter, the latter turns Section 3 into a dead letter - not just for insurrectionist presidents, but for everyone else. It's highly unlikely Congress will enact new enforcement legislation at any time in the near future.
Before Trump's attempt to overturn the 2020 election and the resulting January 6 attack on the Capitol, it may have seemed that gutting Section 3 is no big deal, because there was little chance it would be needed. But we can no longer assume such complacency is justified. If future presidents and other officeholders do not face disqualification for insurrection, they might well conclude that imitating Trump's example is a worthwhile gamble. If you succeed, you get to stay in power despite losing an election! And if you fail, you can still seek office again in the future.
At one point, Justice Kavanaugh suggested that 18 U.S.C. Section 2383, the federal criminal insurrection law, qualifies as an exclusive enforcement statute. For reasons explained in Part I.B of my amicus brief, that simply isn't true. In addition, requiring a criminal conviction for insurrection will make enforcement impossible in situations where getting one is difficult or impossible, or where prosecutors choose to pursue other charges instead.
While the vast bulk of oral argument time was devoted to the self-execution issue, there was also some discussion of the issue of whether the presidency is covered by Section 3. Here, Trump lawyer Jonathan Mitchell made some striking concessions. For example, he conceded there is no good reason why an insurrectionist president should be excluded from coverage. Indeed, as he noted, the case for covering the president is actually stronger than that for covering other offices, given that the president is commander-in-chief of the armed forces, thereby making an insurrectionist president a far greater menace than an insurrectionist member of Congress or lower-level executive official. He also admitted that people at the time feared that a former Confederate such as Jefferson Davis could potentially become president.
Mitchell tried to suggest that the exclusion of the presidency was the result of a "compromise." But such a compromise could only occur if some people had a reason why they wanted to exclude the highest office in the land from Section 3's coverage. If, as Mitchell admitted, no such reason exists, there is no basis for believing that a compromise on this point was made.
Early on, a good chunk of time was also spent on Mitchell's creative argument that Section 3 cannot be enforced until an official has actually taken office, because until then Congress can also lift his disability by a 2/3 majority vote of each House. This is a badly flawed argument, and I don't think it got much traction with the Court. But Mitchell and Trump won't need to rely on this theory if they can win on self-enforcement, as now seems probable.
In sum, the most likely outcome is that the Court will rule in Trump's favor on the grounds that Section 3 is not self-enforcing. It's a bad argument that would set a dangerous precedent by effectively gutting Section 3. But it obviously appeals to the justices, for reasons that see more pragmatic in nature than legal.
As regular readers will know, Seth Barrett Tillman and I have spent untold hours over the past six months, and really past three years, on Section 3. But when I walked into the Supreme Court this morning, I felt a sense of closure. All of the arguments that had to be made were made--Seth and I were up till about 10:30 pm last night, working in person (for once) on a final post. Now, the only thing left to do was sit back, relax, and hear what the Justices had to say.
The arguments did not go exactly as I expected, but it was a very rewarding experience. And I suspect that Trump will win big league. Here are my immediate reactions, made based on my hand-scrawled notes. (I may write more when the transcript is released.)
Griffin's Case, which was barely mentioned in Petitioner's opening brief, occupied a lot of the argument. Our amicus brief and article led off with Griffin's Case. We've always seen this decision as a key ground of resolving the case. Justice Kavanaugh referred to the status of Griffin's Case as "liquidated" in light of Federalist 37. Tillman and I made that point expressly in our brief at p. 5.
Although not binding, courts at all levels have seen Griffin's Case as persuasive. Griffin's Case has settled the meaning of Section 3. See Federalist No. 37 (Madison) (discussing liquidation).
If the Court adopts Griffin's Case, the sword/shield dichotomy that Tillman and I advanced will be useful. The dichotomy helps to reconcile Griffin's Case with the Case of Jefferson Davis. Our brief stated at page 9:
Finally, it is these "two distinct senses of self-execution" which "reconciled in a principled manner" Griffin's Case and Chase's decision in the Case of Jefferson Davis. See Co.Sup.Ct.¶299 (Samour, J., dissenting) (citing Blackman & Tillman, supra, at 484–505).
Jonathan Mitchell acknowledged this tension between Griffin's Case and the Case of Jefferson Davis in response to Justice Sotomayor, but did not attempt to reconcile it. Moreover, that dichotomy helps to explain the direct appeal/collateral challenge question that Justice Barrett raised. The Constitution can always be raised as a defense on direct appeal. But the Constitution can only be used as a sword with a cause of action for a collateral challenge. (Our motion for leave to participate in oral argument identified the sword/shield distinction as one where we were not on the same page as the Petitioner).
Justice Ketanji Brown Jackson was the most interested questioner on whether the presidency was an "Office under the United States." She alluded to Kurt Lash's important research. Jonathan Mitchell pushed back against that argument, fearful of what it would mean for the Foreign Emoluments Clause. That must have been Mitchell's strategy going into the Court, but he could have pivoted when he heard Jackson's repeated entreaties. At times it seemed like Jackson was Trump's lawyer and Mitchell was Colorado's lawyer. (Our motion for leave to participate in oral argument identified this as another area where we were not on the same page as the Petitioner).
Justice Gorsuch was the most interested questioner on whether the President was an "Officer of the United States."He asked about the Commissions Clause in particular. He also inquired several times about our the Speaker and the Incompatibility Clause--a point Tillman and I have advanced. He suggested that the Blackman-Tillman position may be "odd," but it is what the text says. The citations to Bostock in our brief reflected this approach. Justice Sotomayor (I am almost certain) referred to us as "some scholars." Justice Kagan interrupted Justice Jackson, and joked about that "officer stuff." The Chief smiled. I'll take it.
After we left the Court, Seth and I took what I imagine will be a Dewey-defeats-Truman photo.
I asked Prof. Akhil Amar whether he was inclined to respond to Prof. Lash's response to the Amar brothers' amicus brief in Trump v. Anderson, and Prof. Amar suggested that I might publish a reply by Prof. Amar's research assistants at Yale Law School (Arshan Barzani, Samarth Desai, Jacob Hutt, and Jordan Kei-Rahn), which I am glad to do; all that follows below is their work:
[* * *]
We are research assistants to Professor Akhil Reed Amar at Yale Law School. We write to address some spirited but misguided critiques Professor Kurt Lash has made in response to the amicus brief of Professor Amar and Professor Vikram Amar in Trump v. Anderson.
Respectfully, we also write to raise serious concerns about the reliability of Professor Lash's writings on Section 3 and to make clear what the historical record does—and does not—say.[1]
By answering seven questions, we will show that (1) there was a First Insurrection, (2) John B. Floyd, in addition to other Buchanan Administration officials, participated, (3) Section 3 is self-executing, and (4) Section 3 covers the presidency.
Today, the Supreme Court will hold oral arguments in Trump v. Anderson, the case addressing whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. Co-blogger Josh Blackman and I discussed and debated the case for almost an hour on C-SPAN's Washington Journal program. As regular readers know, Josh believes the Court should rule Trump is not disqualified, while I think they should rule that he is.
The video is available here. If I can figure out a way to embed it in this post, I will do so. But so far, I have not been able to.
My amicus brief in the case, which argues that disqualification under Section 3 does not require a prior criminal conviction, is available here. I have previously written about other issues related to the Section 3 litigation, most extensively here and here.
Josh's amicus brief (written on behalf of Prof. Seth Barrett Tillman) is available here.
[Note: This is the ninth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first eight essays can be found here, here, here, here, here, here, here, and here.]
A question regularly raised about our interpretation and explication of Section Three is how its rules might bear on various different factual patterns, real or imagined. Does conduct of a particular description, in a specific set of circumstances, on its own unique facts, constitutes having "engaged in" "insurrection or rebellion" within the meaning of the Constitution? What about this situation? What about this one?
Accepting as given our account of Section Three's terms – "insurrection," "rebellion," "engaged in," "aid or comfort to" – folks frequently ask how these legal definitions and standards apply to a variety of real or hypothesized situations. Our answer is that the facts matter. Further, the determination of what the facts are is by and large committed to the legal process – the record amassed at trial and the ensuing judgment of the trier of fact.
As we put it in our forthcoming article, The Force and Sweep of Section Three, it "is not for us to say who all is disqualified by virtue of Section Three's constitutional rule." (Ms. at 126).
That is the duty and responsibility of many officials, administrators, legislators, and judges throughout the country. Where they are called on to decide eligibility to office, they are called on to enforce Section Three, applying the Constitution's legal standard to the facts before them in a given instance.
The point is worth repeating, sharpening, and emphasizing: whether and precisely how the legal standards of Section Three apply in particular cases are matters to be determined in the usual manner that questions of how the law applies to a particular set of facts are determined. They are decided by the usual legal processes of a civil trial in which a trier of fact – a judge or a jury, depending on the type of case and in some circumstances the choices of the parties – determines what the true facts are, when there is a genuine dispute over facts material to how the relevant legal standard applies.
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