SCOTUS handed down its ruling on Trump v. Anderson today; unanimously deciding that states cannot remove officers of the federal government based on the Fourteenth Amendment. I fear I'm doing way too much scotusposting these days but since I've been following this one I have to close the book on it.

SCOTUS

Proposed by Congress in 1866 and ratified by the States in 1868, the Fourteenth Amendment "expand[ed] federal power at the expense of state autonomy" and thus "fundamentally altered the balance of state and federal power struck by the Constitution."

The per curiam opinion more or less says that viewing the Fourteenth Amendment as anything except a transfer of power from states to the federal government is simply wrong.

SCOTUS

This can hardly come as a surprise, given that the substantive provisions of the Amendment "embody significant limitations on state authority." ... The Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States. 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.

Reading this reminded me of the ideological debate about how to teach grade school students the causes of the Civil War, namely if it was mostly about slavery or states' rights. While it would be no shock to see someone at a Texas PTA meeting describe the Civil War Amendments as a power grab by the federal government, I would expect SCOTUS to take a broader view of the things that ended slavery and enshrined equal protection of the law.

SCOTUS

Section 3 of the Amendment... was designed to help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.

Even barring oathbreakers from office is written like it's a consolidation of federal power. Why the focus on the balance of power? It's not like rooting out insurrectionists can't be done by both the state and federal government. Let's briefly rewind to the requirements for being president:

1. Age 35 and natural born citizen, per the Constitution.
2. Not an oathbreaking insurrectionist, per the Fourteenth Amendment.
3. Not running for a third term, per the Twenty-second Amendment.

So the first one has been enforced by states regularly throughout history, including the recent case with that Gorsuch quote that's been floating around. The third one doesn't come up too often, but perhaps SCOTUS would be okay with states enforcing post-FDR term limits. And so we have consistency across requirements defined in the original text of the Constitution and Amendment Twenty-two, Amendment Fourteen should be the same deal, right?

"The Fourteenth Amendment is different."

Backing in to a decision

SCOTUS

The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power.

So since the Fourteenth Amendment was only about empowering the federal government, the Constitution's election framework that probably applies to later amendments does not apply to this one.

SCOTUS

This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

One might expect that the writers of the Fourteenth Amendment would be cognizant of the Constitution and, if they were creating an exception to the rule, would have stated such. SCOTUS took a different view:

SCOTUS

... the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States.

Nor does the text of the Twenty-second.

In defense of the view described above, the Court's opinion claims that the 2/3 Congressional vote required to remove the ineligibility is an indication of the amendment's intent for it to be exclusively federal. Further, it claims that state power to remove a candidate would burden the federal legislature with hearing requests for relief. The argument references the case of one Nelson Tift:

SCOTUS

Shortly after the Fourteenth Amendment was ratified, for instance, Congress enacted a private bill to remove the Section 3 disability of Nelson Tift of Georgia, who had recently been elected to represent the State in Congress.

I wondered how Tift had been disqualified in the first place. This predated the Enforcement Act of 1870 which was ostensibly the legislation that proves Section 3 is not self-executing. The internet didn't have a readily-available answer, so of course I asked an LLM:

Copilot

Nelson Tift was an American businessman, sailor, and politician who is best known for founding the city of Albany, Georgia. During the American Civil War, Tift was a captain in the Confederate States Navy supply department. He built gunboats for the Confederate navy and supplied the Rebel army with beef and hardtack produced by his factories at Albany and at nearby Palmyra in Lee County. After the war ended, he was elected to the 40th United States Congress as a U.S. Representative with the Democratic Party and served from July 25, 1868, until March 3, 1869. However, he was not permitted to qualify for re-election in 1868 and unsuccessfully contested the election of his replacement, Richard H. Whiteley. The reason for his ineligibility likely stems from his service in the Confederate States Navy during the Civil War. The Fourteenth Amendment to the United States Constitution, ratified in 1868, includes a clause (Section 3) that disqualifies from federal and state office any individual who had taken an oath to support the Constitution, and who later engaged in insurrection or rebellion against the United States, or gave aid or comfort to its enemies. This would have applied to many former Confederates like Tift who sought to hold public office during the Reconstruction Era. However, the same section of the Fourteenth Amendment also provides that Congress can, by a two-thirds vote of each House, remove such disability. This is likely how Tift's eligibility to hold a seat in Congress was restored. Unfortunately, I couldn't find specific details about the vote that restored Tift's eligibility. For more detailed information, you might want to consult primary source documents or specialized historical studies.

As is the norm with GPT queries, the first response was generic and did not answer my question but in my follow up I got an answer:

Copilot

The determination of Nelson Tift's ineligibility to hold office was not the result of a criminal or civil trial. Instead, it was a consequence of the Fourteenth Amendment to the United States Constitution, specifically Section 3. This section automatically disqualified any individual from holding federal or state office if they had taken an oath to support the Constitution and later engaged in insurrection or rebellion against the United States, or gave aid or comfort to its enemies. This provision was applied broadly to many individuals who had served the Confederacy during the Civil War, including Tift due to his service in the Confederate States Navy. The enforcement of this provision did not require a trial; it was essentially an automatic consequence of having supported the Confederacy.

Obviously, this could be a hallucination just as easily as it could be a direct reference to a legitimate publication. It does seem like a glaring omission from the SCOTUS footnote, however Tift's fate actually played out.

To their credit, the per curiam judgment does acknowledge another example of a state-originated disqualification of a federal officer:

SCOTUS

We are aware of just one example of state enforcement against a would-be federal officer. In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because-in the Governor's view-Section 3 made Christy ineligible to serve. But the Governor's determination was not final; a committee of the House reviewed Christy's qualifications itself and recommended that he not be seated. The full House never acted on the matter, and Christy was never seated.

It's just weird see this/these cases dismissed while Griffin and the Texas-history-book aesthetics of the Fourteenth Amendment are considered conclusive.

SCOTUS

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). The "patchwork" that would likely result from state enforcement would "sever the direct link that the Framers found so critical between the National Government and the people of the United States" as a whole.

I personally wouldn't characterize representative government and the electoral college as 'a direct link'. Certainly there are flaws with any system, but calling the link 'direct' is especially galling under these circumstances:

1. People went to the polls and voted for the next president.
2. Their votes were tallied and then bundled into a choice for their state as a whole.
3. The state decisions were sent to a bunch of dudes in a room to count. This is normally a formality and wouldn't be considered an elongation of this direct link. Except...
4. The losing candidate decided that he'd send another set of bundled votes to be counted. And then a single person from his administration could simply choose to not count certain votes. Failing that, the entire process could be dragged out until a group of nine unelected government employees would make the final decision.

Beyond the reversal

Having states adjudicate nontrivial qualifications for federal government was never going to work out. Age and term limits are straightforward but insurrection and maybe even natural born citizenship could have fifty different decisions. And so on the grounds that states shouldn't decide federal elections, all of SCOTUS agreed that the Colorado Supreme Court had "erred in their decision". Or, more likely, the CSC had made the correct, impractical decision.

Officer/office under

The former president's attorney argued that Section 3 doesn't apply to presidents and for another reason it doesn't apply to his client (and George Washington). In oral agruments Justice Gorsuch seemed extremely interested in this line of reasoning. As far as I can tell, the applicability of Section 3 to the president isn't addressed in this ruling. Perhaps there is an implication in this statement: "For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States."

Self-execution and Jack Smith

Another significant question raised in oral agruments was whether Section 3 required separate legislation to enforce it. Having already decided that states can't apply 14.3 to federal elections, the per curiam opinion still passed judgment. The liberal justices disagreed:

Justices Jackson, Kagan, and Sotomayor

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment. Section 5 gives Congress the "power to enforce [the Amendment] by appropriate legislation." Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) "are self-executing," meaning that they do not depend on legislation. The majority also cites Senator Trumbull's statements that Section 3 " 'provide[d] no means for enforcing' " itself. The majority, however, neglects to mention the Senator's view that "[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office," with the proposed legislation simply "affor[ding] a more efficient and speedy remedy" for effecting the disqualification. It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.

By many accounts, minimizing their reach is how the court is support to operate. On the other hand, there is a stalled/ongoing criminal prosecution against a leading presidential candidate for the very insurrection addressed in the Colorado ruling. So the bonus determination that 14.3 is not self-executing could be significant; certainly Congress isn't going to pass an insurrection law between now and November (ignoring ex post facto concerns). Luckily, they don't have to:

18 U.S. Code 2383

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The per curiam opinion specifically calls out the federal insurrection statute that closely echoes 14.3. This presumably means insurrection charges will be added to the January 6 prosecution once/if it is restarted.

As I discussed previously, the Enforcement Act of 1870 permitted civil procedures to have 14.3-ineligible candidates removed from the ballot or office. I expect that the self-execution ruling means there cannot be a federal civil suit filed against any of the perpetrators of January 6 without new legislation.

In another concurring opinion, Justice Barrett sought to reassure Americans that they should sleep well knowing that the Supreme Court is unified:

Justice Barrett

I join Parts I and II-B of the Court's opinion. I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. 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. The majority's choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.

I'm not sure that deciding to hear the "absolute immunity" claim in late April after the government's petition in December is going to turn down the temperature.

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