Revisiting Trump and the Fourteenth Amendment

So the Supreme Court of the United States ruled that States cannot exclude former-President (and current Republican front-runner) Donald Trump from their Republican primary ballots. I wrote an article basically saying much the same back in November 2022.

So where did the Supreme Court and I agree, and where did we not?

“officers of the United States”

First off, let’s get this out of the way. While it was argued by Trump’s attorneys that the President is not an “officer of the United States” as inferred in the Constitution, the Supreme Court ultimately did not rule on that point.

But they didn’t need to. Because it isn’t yet relevant.

For it to become relevant, two things would have to happen, in this order:

  1. Trump, or another former President, would need to be convicted in a Federal Court under 18 USC §2381 or §2383, with that conviction not being vacated by a Court, and
  2. They would then need to win the election for the office of President.

And given the likelihood for this to happen, this is a question that will likely never be addressed simply because it won’t ever need to be.

Section 5

This was really the entirety of the Supreme Court’s ruling. Section 5 of the Fourteenth Amendment says simply, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” So Congress alone is granted that authority by the Fourteenth Amendment.

Its ratification did not stop ex-Confederates from seeking and being elected to Federal office. The issue was simply Congress had yet to define an enforcement mechanism, meaning, by default, Congress never saw the Amendment as self-enforcing. And Section 5 explicitly disavows any idea that it is self-enforcing.

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.

I mentioned the Enforcement Act of 1870 in my previous article. It provided for a “writ of quo warranto” for removing any person who was holding any Federal office in violation of Constitutional requirements – it was not limited only to the Fourteenth Amendment. Currently there is no Federal “quo warranto” statute. Instead that power is held by the District of Columbia with authorization by Congress and adjudicated by the United States District Court for the District of Columbia.

And absent “quo warranto”, Congress has absolute authority to impeach someone who is holding an office without proper qualification. The House and Senate have the unquestionable authority to refuse to seat and to eject someone who is not qualified to hold a seat in the respective Chambers.

For example, if it was true and could be proven that Obama was not a natural born citizen of the United States, the House absolutely could have him impeached on that point. Same for any person who was convicted of treason, insurrection, or, largely, any crimes against the sovereignty of the United States. The House and the Senate have that unquestionable, irreversible authority.

After the Enforcement Act of 1870 was largely repealed following the Second World War, the only direct enforcement mechanism for Section 3 left intact is the Federal criminal statutes for treason and insurrection, 18 USC §§2381, 2383, respectively.

So, in short, only Congress has the power to enforce Section 3, contrary to the assertions of the State of Colorado. And the Supreme Court also used much the same assertions to back up their reasoning that I used in my article.

Separate sovereigns

The Court also highlighted a complication that we’re already seeing. “The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).” And we’re already seeing this.

Due to the separate sovereigns doctrine.

Normally this doctrine is applied with regard to the Double Jeopardy Clause of the Fifth Amendment, but the concept is apt here. Each States is the controller of their own elections, deciding who has access to their ballots and who does not. This is why candidates for President have to gain approval from each State individually to be on the ballot in that State. There is no overarching Federal qualification process each State must honor – though that’d make Federal elections for third party candidates far easier.

Did they go too far?

Justices Barrett, Sotomayor, Kagan, and Jackson alleged in the two concurring opinions that the majority went a bit far in (and these are my words) “hammering home” the point that the States cannot enforce Section 3. But what they’re saying doesn’t seem to jive with the final decision of the Court, making me wonder if there was a much broader decision initially that was scaled back on the objections of the concurring Justices.

First, Justice Barrett:

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.

Reading the decision, I don’t see this occurring in the slightest. For one, the question isn’t complicated in the least. It’s straightforward. And the Court didn’t declare herein that Federal legislation is the “exclusive vehicle through which Section 3 can be enforced”. That had already been declared previously by Chief Justice Chase back in 1869. The Court herein merely reiterated it.

And Justice Sotomayor (with whom Kagan and Jackson joined) went so far into left field she hopped the fence and kept going. Again, I wonder if there was initially a much broader opinion that was then scaled back after Barrett and Sotomayor wrote their concurrences. This sentence in Sotomayor’s opinion gives reason to believe this: “They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13.” Except there is nothing on page 13 matching what she is describing.

What was initially there?

Yet the Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to “‘”ascertain[] what particular individuals”’” should be disqualified. Ante, at 5 (quoting Griffin’s Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). These musings are as inadequately supported as they are gratuitous.

Note the year on the “Griffin’s Case” citation. 1869. The year after the Fourteenth Amendment was ratified. And the year before the Enforcement Acts of 1870 were passed into law under President Ulysses S. Grant.

More specifically, Chase issued his opinion in May 1869. Senator Trumbull, noted above, said what is quoted on April 8, 1869. So Senator Trumbull also recognized what Chief Justice Chase would eventually rule: that the Amendment required an enforcement mechanism for removing ex-Confederates who were disqualified by the Fourteenth Amendment and that no such enforcement mechanism yet existed.

Now the object of the amendment is to unseat every officer, whether judicial or executive, who holds civil or military office in contravention of the terms of the amendment. Surely a construction which fails to accomplish the main purpose of the amendment, and yet necessarily works the mischief and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the constitution, is not to be favored, if any other reasonable construction can be found.

Is there, then, any other reasonable construction? In the judgment of the court there is another, not only reasonable, but very clearly warranted by the terms of the amendment, and recognized by the legislation of congress. The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.

Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that “congress shall have power to enforce, by appropriate legislation, the provision of this article.”

There are, indeed, other sections than the third, to the enforcement of which legislation is necessary; but there is no one which more clearly requires legislation in order to give effect to it. The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections. And the final clause of the third section itself is significant. It gives to congress absolute control of the whole operation of the amendment These are its words: “But congress may, by a vote of two-thirds of each house, remove such disability.” Taking the third section then, in its completeness with this final clause, it seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. This construction gives certain effect to the undoubted intent of the amendment to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.

It results from the examination that persons in office by lawful appointment or election before the promulgation of the fourteenth amendment, are not removed there from by the direct and immediate effect of the prohibition to hold office contained in the third section; but that legislation by congress is necessary to give effect to the prohibition, by providing for such removal. And it results further that the exercise of their several functions by these officers, until removed in pursuance of such legislation, is not unlawful.

Now remember, this was before the Enforcement Acts. The Fourteenth Amendment declared a disqualification for office that took effect immediately upon its ratification, one that Congress could remove – and the Court noted in a footnote that Congress did just that with the election of Nelson Tift.

But the mere declaration of the disqualification isn’t enough since, as Chase and Trumbull pointed out, Section 3 is not self-enforcing. Congress must enact legislation providing for its enforcement. And that’s where the aptly-named Enforcement Act of 1870 comes into play.

All the Court said in the majority opinion is simply that Congress alone has that authority.

All that, though, was repealed in 1948. What was left behind is the insurrection statute along with the “writ of quo warranto” process in the District of Columbia, along with, of course, the House’s impeachment power.

The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candidate found to have engaged in insurrection off its ballot. The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.

Again, the majority did no such thing. It said that enforcement falls only with Congress and that currently the only enforcement vehicle is, as mentioned, 18 USC §2381 and §2383. They didn’t address Federal enforcement of Section 3 in the slightest in what was published except to say, again, that only Congress can enforce it and highlight how it’s currently to be enforced.

But why did the Court do this?

In my opinion, it’s to foreclose any alternate ideas that might be brought before the Court as to how Trump might be declared ineligible under the Fourteenth Amendment. Such as, since the Court brought up Congress, attempting to appeal to Congress for a joint resolution or something amounting to a bill of attainder.

That’s the “hammering home” I mentioned earlier.

And I feel they did that to close any loopholes with the hope of keeping any potential future cases off their docket, since, this being an election year, any such cases would likely require expedited handling, disrupting their other business. So if they can prevent that by writing an opinion that says, in short, “States can’t enforce Section 3, and Congress can only do so via proper legislation”, then they’re closing the question on what Congress can do before it’s even asked.

No wiggle room. No loophole.